EXHIBIT 10(e)
REGISTRATION RIGHTS AGREEMENT
among
XXXXXX XXXXXXX LEVERAGED EQUITY FUND II, INC.,
SMURFIT INTERNATIONAL B.V.,
JEFFERSON SMURFIT CORPORATION
and
THE OTHER PARTIES IDENTIFIED
ON THE SIGNATURE PAGES HERETO
Dated as of May 10, 1998
TABLE OF CONTENTS
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PAGE
SECTION 1. Effectiveness and Certain Definitions............................1
SECTION 2. Demand Registration..............................................5
SECTION 3. Company Registration.............................................9
SECTION 4. Piggyback Registration..........................................10
SECTION 5. Expenses........................................................12
SECTION 6. Registration and Qualification..................................12
SECTION 7. Termination.....................................................15
SECTION 8. Underwriting; Due Diligence, Etc................................15
SECTION 9. Restrictions on Public Sale; Inconsistent Agreements............17
SECTION 10. Indemnification and Contribution................................18
SECTION 11. Rule 144........................................................21
SECTION 12. Miscellaneous...................................................21
SECTION 13. Representations and Warranties..................................25
SECTION 14. Ireland Listing.................................................27
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of May 10, 1998 (this
"Agreement") among XXXXXX XXXXXXX LEVERAGED EQUITY FUND II, INC., a Delaware
corporation ("MSLEF II"), SMURFIT INTERNATIONAL B.V., a corporation organized
under the laws of The Netherlands ("SIBV"), JEFFERSON SMURFIT CORPORATION, a
Delaware corporation (the "Company"), and the other parties identified on the
signature pages hereto.
WHEREAS, the Company, Stone Container Corporation, a Delaware
corporation ("Stone"), and JSC Acquisition Corporation, a Delaware corporation
and a wholly owned subsidiary of the Company ("Sub"), have entered into a
Merger Agreement (the "Merger Agreement") dated as of the date hereof pursuant
to which, subject to the terms and conditions specified therein, Sub will merge
with and into Stone (the "Merger"); and
WHEREAS, as a condition and inducement to the willingness of SIBV,
MSLEF II and certain of their respective Affiliates to support the Merger by
agreeing to approve the issuance of the Common Stock (as defined below)
necessary to consummate the Merger and certain amendments to the Company's
certificate of incorporation as contemplated by the Merger Agreement, the
Company has agreed to grant MSLEF II and such related parties the registration
rights described herein.
NOW, THEREFORE, upon the premises and the mutual promises herein
contained, and for good and valuable consideration, the receipt and adequacy of
which is acknowledged, the parties agree as follows:
SECTION 1. Effectiveness and Certain Definitions. (a) The parties
hereto hereby agree that, effective as of the closing of the Merger, the
Registration Rights Agreement dated as of May 3, 1994 shall terminate and the
parties hereto agree that, at such time, this Agreement, other than this
Section 1(a) (which shall be effective as of the execution of this Agreement),
shall become effective.
(b) As used in this Agreement the following terms shall have the
following meanings:
"Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended. In the case of any Person which is a trust established under
an employee benefit plan subject to the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time, an "Affiliate" of such
Person shall include any trust (under a plan maintained by the same employer as
such plan) that is a successor to the assets held by such trust or any other
trust established directly or indirectly under such plan or any other such plan
maintained by the same employer.
"Common Stock" shall mean the common stock, par value $0.01 per share,
of the Company, any stock or other securities into which or for which such
stock may hereafter be changed, converted, exercised or exchanged, and any
other securities issued to holders of such stock (or such securities into which
or for which such shares are so changed, converted or exchanged) upon any
reclassification, recapitalization, share combination, share subdivision, share
dividend, merger, consolidation or similar transaction or event.
"Effective Date" means, with respect to any registration statement,
the date of the effectiveness thereof under the Securities Act (without regard
to any post-effective amendments to such registration statement).
"Equity Investors" shall mean SIBV/MS Equity Investors, L.P., a
Delaware limited partnership.
"Equity Investors Inc." shall mean Xxxxxx Xxxxxxx Equity Investors
Inc., a Delaware corporation and the general partner of Equity Investors.
"Xxxxxx Holders" shall mean (i) MSLEF II, (ii) Equity Investors, (iii)
The MSLEF II Fund, (iv) Equity Investors Inc., (v) First Plaza Group Trust
("First Plaza"), (vi) Leeway & Co. ("Leeway"), (vii) MSLEF and (viii) any
Person which has purchased, in one transaction or a series of related
transactions, at least 2% of the outstanding Common Stock from a Xxxxxx Xxxxxx
and which has agreed, with the consent of MSLEF II and in form and substance
reasonably satisfactory to the Company and SIBV, to be bound as a Xxxxxx Xxxxxx
and to have the rights and obligations of a Xxxxxx Xxxxxx for purposes of this
Agreement (each such Person, a "Block Purchaser" and the shares of Common Stock
so purchased, "Block Purchaser Shares").
"MSLEF" shall mean Xxxxxx Xxxxxxx Leveraged Equity Holdings, Inc., a
Delaware corporation.
"MSLEF II" shall mean Xxxxxx Xxxxxxx Leveraged Equity Fund II, Inc., a
Delaware corporation and the general partner of The MSLEF II Fund.
"Person" means an individual, a corporation, a partnership, a joint
venture, a trust or unincorporated organization, a joint stock company or other
similar organization or any other legal entity.
"Registrable Securities" means the Common Stock; provided that any
such securities shall cease to be Registrable Securities with respect to a
proposed offer or sale thereof (i) when 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 the plan
of distribution set forth in such registration statement or (ii) such
securities shall have been disposed of in accordance with Rule 144 or in a
private placement other than to a Block Purchaser; provided, further,
Registrable Securities in respect of any Person shall not include Common Stock
acquired by such Person after the date hereof (other than (i) shares of Common
Stock acquired as a result of a reclassification, recapitalization, share
combination, share subdivision, share dividend or similar event, (ii) shares
acquired by a Xxxxxx Xxxxxx from another Xxxxxx Xxxxxx or by an SIBV Holder
from a Xxxxxx Xxxxxx and (iii) Block Purchaser Shares).
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with its registration obligations set forth in
this Agreement including, without limitation, the following: (i) the fees,
disbursements and expenses of the Company's counsel(s) (United States and
foreign) and accountants in connection with the registration of the Registrable
Securities to be disposed of under the Securities Act; (ii) the reasonable fees
and disbursements of (1) one counsel (other than counsel to the Company)
retained by the Xxxxxx Holders in connection with each such registration in
which a Xxxxxx Xxxxxx intends to participate hereunder and (2) one Irish and
one United States counsel (other than counsel to the Company) retained by the
SIBV Holders in connection with each such registration in which an SIBV Holder
intends to and is permitted to participate hereunder; (iii) all expenses in
connection with the preparation, printing and filing of the registration
statement, any preliminary prospectus or final prospectus, any other offering
documents and amendments and supplements thereto and the mailing and delivering
of copies thereof to any underwriters and dealers; (iv) the cost of printing or
producing any agreement(s) among underwriters, underwriting agreement(s), and
blue sky or legal investment memoranda, any selling agreements and any other
documents in connection with the offering, sale or delivery of the Registrable
Securities to be disposed of; (v) all expenses in connection with the
qualification of the Registrable Securities to be disposed of for offering and
sale under state securities laws, including the reasonable fees and
disbursements of counsel for the underwriters or the Selling Holders in
connection with such qualification and in connection with any blue sky and
legal investments memoranda; (vi) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Registrable Securities to be disposed of; (vii)
transfer agents', depositaries' and registrars' fees and the fees of any other
agent appointed in connection with such offering, including the fees and
expenses of any "qualified independent underwriter", or other person acting in
a similar capacity, pursuant to the requirements of the National Association of
Securities Dealers, Inc. or otherwise (the "Independent Underwriter"); (viii)
all security engraving and security printing expenses; and (ix) all fees and
expenses payable in connection with the listing of the Registrable Securities
on each securities exchange or inter-dealer quotation system on which a class
of common equity securities of the Company is then listed or on which the
Registrable Securities may be listed pursuant to Sections 6(e) and 6(h) hereof.
"Registration Notice" means written notice by any of MSLEF II, SIBV or
the Company, as the case may be, that such Person desires to initiate a
Registration Process in accordance with the terms of this Agreement.
"Registration Process" means the process of registering certain shares
of Common Stock under the Securities Act, which, for purposes of this
Agreement, shall be deemed to be the period of time from the Registration
Notice until the end of any "hold back" period required by the underwriters or,
if there is no such period, then 30 days after the Effective Date of the
registration statement; provided, however, in the event that (i) a registration
statement has not been filed with the SEC within 45 days of a Registration
Notice, (ii) such registration statement has not been declared effective by the
SEC within 75 days of its filing with the SEC, or (iii) the Registration Notice
or the registration statement has been abandoned or withdrawn by MSLEF II, SIBV
or the Company, as the case may be, then the Registration Process shall be
deemed concluded at such time.
"Rule 144" means Rule 144 (or any successor rule) promulgated under
the Securities Act (excluding Rule 144A or any successor rule promulgated under
the Securities Act).
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute.
"Selling Holders" shall mean any party hereto selling pursuant to and
in accordance with the terms of this Agreement.
"SIBV Holders" shall mean SIBV and any Affiliate of SIBV holding
Registrable Securities.
"The MSLEF II Fund" shall mean The Xxxxxx Xxxxxxx Leveraged Equity
Fund II, L.P., a Delaware limited partnership.
SECTION 2. Demand Registration. (a) Upon a Registration Notice from
(i) MSLEF II, on behalf of the Xxxxxx Holders specified therein, to both the
Company and SIBV or (ii) SIBV, on behalf of the SIBV Holders specified therein,
to both the Company and MSLEF II, in each case in the manner set forth in
Section 12(g) hereof, requesting that the Company effect the registration under
the Securities Act of any or all of the Registrable Securities held by such
Xxxxxx Holders or held by such SIBV Holders, as the case may be, and
specifying, among other things, the number of Registrable Securities which the
Xxxxxx Holders or the SIBV Holders, as the case may be, desire to register and
the intended method or methods of disposition of such Registrable Securities,
the Company will use its best efforts to effect (at the earliest possible date)
the registration under the Securities Act of such Registrable Securities for
disposition in accordance with the intended method or methods of disposition
stated in such request, provided, however, that the Company shall not be
required to effect an offering on a delayed or continuous basis pursuant to
Rule 415 (or any successor rule to similar effect) promulgated under the
Securities Act; and provided, further, that:
(i) in the event that the Company has delivered a Registration Notice
in accordance with the provisions of Section 3, neither MSLEF II nor
SIBV may deliver a Registration Notice pursuant to this Section 2(a)
until the conclusion of such Company Registration Process;
(ii) in the event that SIBV has delivered a Registration Notice in
accordance with the provisions of this Section 2(a), neither MSLEF II
nor the Company may deliver a Registration Notice pursuant to this
Section 2(a) until the conclusion of such SIBV Registration Process;
(iii) in the event that MSLEF II has delivered a Registration Notice
in accordance with the provisions of this Section 2(a), neither SIBV
nor the Company may deliver a Registration Notice until the conclusion
of such MSLEF II Registration Process; and
(iv) if, while a Registration Process is pending pursuant to this
Section 2, the Chief Financial Officer of the Company, after
consultation with outside counsel for the Company, has determined in
good faith that the filing of a registration statement would require
the disclosure of material information which the Company has a bona
fide business purpose for preserving as confidential, the Company
shall not be required to effect a registration pursuant to this
Section 2 until the earlier of (A) the date upon which such material
information is disclosed to the public or ceases to be material, and
(B) 90 days after the Chief Financial Officer of the Company makes
such good faith determination (a "Company Delay"); provided, however,
the Company shall only be entitled to a Company Delay once in
connection with any MSLEF II Demand in any 270-day period during the
term of this Agreement and once in connection with any SIBV Demand in
any 270-day period during the term of this Agreement.
(b) In the event that any registration pursuant to a request by MSLEF
II under this Section 2, shall involve, in whole or in part, an underwritten
offering, then MSLEF II shall have the right to designate one or more
nationally recognized investment banking firms as the sole managing or
co-managing underwriter(s) of such underwritten offering which may consist of
or include, at the option of MSLEF II, Xxxxxx Xxxxxxx & Co. Incorporated
("MS&Co."). If MS&Co. shall not be the sole managing underwriter or shall be a
co-managing underwriter, then any sole or other co-managing underwriters
selected by MSLEF II shall be reasonably acceptable to the Company.
(c) MSLEF II shall have the right to effect up to but not more than
two (2) registrations and SIBV will have the right to effect up to but not more
than two (2) registrations (each such registration, whether requested by MSLEF
II or SIBV, a "Demand"), in each case, pursuant to this Section 2; provided,
however, that, without giving effect to any "cutback" imposed by any
underwriter, (i) each MSLEF II Demand shall effect the registration and sale of
at least 1,000,000 shares of Common Stock (as adjusted for any
reclassification, recapitalization, subdivision, stock dividend, stock split or
combination of the Company's outstanding securities after the date hereof) and
(ii) each SIBV Demand shall effect the registration and sale of at least an
aggregate of at least 1,000,000 shares of Common Stock (as adjusted for any
reclassification, recapitalization, subdivision, stock dividend, stock split or
combination of the Company's outstanding securities after the date hereof).
MSLEF II shall have the right to request registration and effect its two
registrations (such effective registrations, the "Initial MSLEF II
Registrations") prior to SIBV delivering a Registration Notice to MSLEF II and
the Company under Section 2(a); provided that, in the event that the Initial
MSLEF II Registrations are not effected on or prior to the third anniversary of
the effectiveness of this Agreement (such three-year period, the "MSLEF II
Exclusive Period"), then SIBV may request registration in accordance with the
terms of this Agreement.
(d) Notwithstanding any other provision of this Agreement to the
contrary, a registration requested by MSLEF II or SIBV pursuant to this Section
2 shall not be deemed to have been effected for purposes of Section 2, (i)
unless it has become effective and maintained effective in accordance with
subsection 6(b), (ii) if after it has become effective such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason other than a
material misrepresentation or a material omission by MSLEF II or any of the
Selling Holders, on the one hand, or SIBV or any of the Selling Holders, on the
other, as the case may be, (iii) if the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied other than by reason of some act or
omission by MSLEF II or any of the Selling Holders, on the one hand, or SIBV or
any of the Selling Holders, on the other, as the case may be, or (iv) unless
the registration is deemed to be an effected Demand pursuant to Section 5.
(e) In the event of any underwritten registration of Registrable
Securities in which the number of Registrable Securities requested by MSLEF II
(in the case of a MSLEF II Demand) or SIBV (in the case of a SIBV Demand) to be
included in such registration exceeds the number which the managing
underwriter(s) advise MSLEF II or SIBV, as the case may be, in writing can be
sold, then there shall be included in such registration the number of
Registrable Securities which can be sold, allocated, unless MSLEF II or SIBV,
as the case may be, notifies the Company of a different method of allocation,
pro rata among the Xxxxxx Holders or the SIBV Holders, as the case may be, on
the basis of the number of Registrable Securities requested to be included
therein by each such Xxxxxx Xxxxxx or SIBV Holder.
(f) In connection with any Demand made by MSLEF II pursuant to this
Section 2 (in the case of SIBV, only from and after, but not before, the
expiration of the MSLEF II Exclusive Period), each of the Company and SIBV
shall have the right to cause the registration of securities for sale for its
own account (the "Piggyback Securities"), upon the written request made by the
Company and/or SIBV within 10 days after receipt of MSLEF II's Registration
Notice (which request shall specify the number of shares intended to be
disposed of and the intended method of disposition thereof), in addition to the
Registrable Securities of the Xxxxxx Xxxxxx(s) being sold pursuant to such
MSLEF II Demand, if the number of Registrable Securities requested by MSLEF II
to be included in such registration does not exceed the number which the
managing underwriter(s) advise MSLEF II in writing can be sold; provided that
in the event the managing underwriter(s) advise MSLEF II in writing (with a
copy to the Company and SIBV) that, in their good faith opinion, inclusion of
all such Piggyback Securities would materially and adversely affect the
offering and sale of the Registrable Securities then contemplated to be sold by
the Xxxxxx Holders, including the per share price thereby obtainable, there
shall only be included in such registration: (1) first, all securities
requested to be included in such registration by the Xxxxxx Holders, (2)
second, up to the full number of Piggyback Securities requested to be included
in such registration by the SIBV Holders (if SIBV is entitled hereunder to make
such request) in excess of the number or dollar amount of the Xxxxxx Holders'
Securities to be included in such registration which, in the good faith opinion
of such underwriter(s), can be sold without materially and adversely affecting
such offering (and, if less than the full number of such Piggyback Securities,
allocated pro rata among the SIBV Holders on the basis of the number of
securities requested to be included therein by each SIBV Holder), (3) third, up
to the full number of Piggyback Securities requested to be included in such
registration by the Company in excess of the number or dollar amount of the
Xxxxxx Holders' Securities and SIBV Piggyback Securities (if applicable) which,
in the good faith opinion of such underwriter(s), can be so sold without
materially and adversely affecting such offering. MSLEF II may require that any
such Company Piggyback Securities or SIBV Piggyback Securities (if applicable)
be included in the offering proposed by the Xxxxxx Holders on the same terms
and conditions as such Xxxxxx Holders' Registrable Securities are included
therein.
(g) In connection with any Demand made by SIBV pursuant to this
Section 2, each of the Company and MSLEF II shall have the right to cause the
registration of securities for sale for its own account and, in the case of
MSLEF II, for the account of the Xxxxxx Holders, upon the written request made
by the Company and/or MSLEF II within 10 days after receipt of SIBV's
Registration Notice (which request shall specify the number of shares intended
to be disposed of and the intended method of disposition thereof), in addition
to the Registrable Securities of the SIBV Holder(s) being sold pursuant to such
SIBV Demand, if the number of Registrable Securities requested by SIBV to be
included in such registration does not exceed the number which the managing
underwriter(s) advise SIBV in writing can be sold; provided that in the event
the managing underwriter(s) advise SIBV in writing (with a copy to the Company
and MSLEF II) that, in their good faith opinion, inclusion of all such
Piggyback Securities would materially and adversely affect the offering and
sale of the Registrable Securities then contemplated to be sold by the SIBV
Holders, including the per share price thereby obtainable, there shall only be
included in such registration: (1) first, all securities requested to be
included in such registration by the SIBV Holders, (2) second, up to the full
number of Piggyback Securities requested to be included in such registration by
the Xxxxxx Holders in excess of the number or dollar amount of the SIBV
Holders' Securities to be included in such registration which, in the good
faith opinion of such underwriter(s), can be sold without materially and
adversely affecting such offering (and, if less than the full number of such
Piggyback Securities, allocated pro rata among the Xxxxxx Holders on the basis
of the number of securities requested to be included therein by each Xxxxxx
Xxxxxx), (3) third, up to the full number of Piggyback Securities requested to
be included in such registration by the Company in excess of the number or
dollar amount of the Xxxxxx Holders' Piggyback Securities and the SIBV
Securities which, in the good faith opinion of such underwriter(s), can be so
sold without materially and adversely affecting such offering. SIBV may require
that any such Xxxxxx Holders' Piggyback Securities or Company Piggyback
Securities be included in the offering proposed by the SIBV Holders on the same
terms and conditions as such SIBV Holders' Registrable Securities are included
therein.
(h) In connection with each MSLEF II Demand, MSLEF II agrees to use
reasonable best efforts to sell or cause to be sold the lesser of (x) all
Registrable Securities that it owns at the time of such MSLEF II Demand and (y)
all Registrable Securities which the managing underwriter advises MSLEF II
pursuant to Section 2(e) can be sold in such registration; provided that
notwithstanding the foregoing, MSLEF II and any Xxxxxx Xxxxxx who has requested
that its Registrable Securities be included in such MSLEF II Demand shall be
under no obligation to sell its Registrable Securities pursuant to the first
MSLEF II Demand if the price per share of Common Stock on the New York Stock
Exchange or The NASDAQ National Market on the Effective Date for such MSLEF II
Demand has decreased by 5% since the date on which MSLEF II delivered its
Registration Notice with respect to such MSLEF II Demand.
(i) Concurrently with the delivery by MSLEF II of a Registration
Notice to the Company pursuant to Section 2(a), MSLEF II shall notify in
writing each of the Xxxxxx Holders of its intent to cause the registration and
sale of Registrable Securities. Such notice shall offer each other Xxxxxx
Xxxxxx the opportunity to include in the registration such number of
Registrable Securities held by such Xxxxxx Xxxxxx as such Xxxxxx Xxxxxx may
request in writing to MSLEF II within 3 business days of receipt of MSLEF II's
notice, subject to Section 2(e).
(j) Promptly (but in no event later than 2 business days) after
receipt by MSLEF II of an SIBV Registration Notice pursuant to Section 2(a),
MSLEF II shall notify in writing each of the Xxxxxx Holders of its receipt of
such Registration Notice. Such notice shall offer each Xxxxxx Xxxxxx the
opportunity to include in the registration such number of Registrable
Securities held by such Xxxxxx Xxxxxx as such Xxxxxx Xxxxxx may request in
writing to MSLEF II within 3 business days of receipt of MSLEF II's notice,
subject to Section 2(g).
SECTION 3. Company Registration. The Company hereby agrees not to file
a registration statement (other than a registration statement on Form S-4 or
Form S-8 or any successor forms) covering its Common Stock or any equity
securities exercisable for, convertible into or exchangeable for Common Stock,
whether or not for sale for its own account, except pursuant to the terms of
this Agreement and following delivery of a Registration Notice as hereinafter
provided. The Company may deliver a Registration Notice to MSLEF II and SIBV at
any time, provided that:
(a) in the event that MSLEF II or SIBV has delivered a Registration
Notice to the Company in accordance with the provisions of Section 2, the
Company may not deliver a Registration Notice pursuant to this Section 3 until
the conclusion of such MSLEF II Registration Process or SIBV Registration
Process, as the case may be; and
(b) the Company may not (i) give a Registration Notice until the
conclusion of a Company Registration Process or (ii) effect an offering on a
delayed or continuous basis of its Common Stock pursuant to Rule 415(a)(1)(ix)
or (a)(1)(x) under the Securities Act.
SECTION 4. Piggyback Registration. If the Company at any time proposes
to register any of its Common Stock or any equity securities exercisable for,
convertible into or exchangeable for Common Stock under the Securities Act,
whether or not for sale for its own account (such Common Stock or other equity
securities being referred to herein as the "Other Securities"), in a manner
which would permit registration of Registrable Securities for sale to the
public under the Securities Act, it will each such time give prompt written
notice to each of the Xxxxxx Holders and SIBV (which notice shall, for purposes
of this Agreement, be deemed to be a Registration Notice with respect to the
registration contemplated thereby, unless a Registration Notice with respect to
such registration shall have been previously delivered by the Company to each
of the Xxxxxx Holders and SIBV under this Section 4, at least 30 days prior to
the anticipated filing date of the registration statement relating to such
registration). Such notice shall offer each Xxxxxx Xxxxxx and, after the MSLEF
II Exclusive Period, each SIBV Holder the opportunity to include in such
registration statement such number of Registrable Securities held by such
holders as such holders may request. Upon the written request of Xxxxxx Holders
(which shall be delivered to both the Company and SIBV) and/or SIBV Holders
(which shall be delivered to both the Company and MSLEF II) made within 10 days
after the receipt of the Company's notice requesting that a number of their
shares be disposed of (which request shall specify the number of Piggyback
Securities intended to be disposed of and the intended method of disposition
thereof), the Company will use its best efforts to effect, in connection with
the registration of the Other Securities, the registration under the Securities
Act of all Piggyback Securities, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the Piggyback
Securities, provided that:
(a) if, at any time after giving such written notice of its intention
to register any Other Securities and prior to the Effective Date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register the Other Securities, the
Company may, at its election, give written notice of such determination to each
of the Xxxxxx Holders and SIBV and thereupon the Company shall be relieved of
its obligation to register the Piggyback Securities in connection with the
registration of such Other Securities (but not from its obligation to pay
Registration Expenses to the extent incurred in connection therewith as
provided in Section 5 hereof), without prejudice, however, to the rights of
MSLEF II or SIBV immediately to request that such registration be effected as a
registration under Section 2 hereof (subject to the Company's right, if any and
if applicable, to a Company Delay);
(b) if the registration referred to in the first sentence of this
Section 4 is to be an underwritten registration on behalf of the Company, and
the managing underwriter(s) advise the Company in writing that in their good
faith opinion such offering would be materially and adversely affected by the
inclusion therein of the Piggyback Securities requested to be included therein,
including the per share price thereby obtainable, the Company shall only
include in such registration: (1) first, all securities the Company proposes to
sell for its own account (2) second, up to the full number of Piggyback
Securities requested to be included in such registration by the Xxxxxx Holders
in excess of the number or dollar amount of Company Securities which, in the
good faith opinion of such underwriter(s), can be so sold without materially
and adversely affecting such offering (and, if less than the full number of
such Piggyback Securities, allocated pro rata among the Xxxxxx Holders on the
basis of the number of securities requested to be included therein by each
Xxxxxx Xxxxxx), (3) third, up to the full number of Piggyback Securities
requested to be included in such registration by SIBV Holders in excess of the
number or dollar amount of Company Securities and Xxxxxx Piggyback Securities
which, in the good faith opinion of such underwriter(s), can be sold without
materially and adversely affecting such offering (and, if less than the full
number of such Piggyback Securities, allocated pro rata among the SIBV Holders
on the basis of the number of securities requested to be included therein by
each SIBV Holder) and (4) fourth, an amount of Other Securities (other than the
securities the Company proposes to sell for its own account), if any, requested
to be included therein in excess of the number or dollar amount of the
securities the Company proposes to sell for its own account and Piggyback
Securities which, in the opinion of such underwriter(s), can be so sold without
materially and adversely affecting such offering (allocated among the holders
of such Other Securities in such proportions as such holders and the Company
may agree);
(c) the Company shall not be required to effect any registration of
Registrable Securities held by any Selling Holder under this Section 4
incidental to the registration of any of its securities in connection with
mergers, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock option or other employee benefit plans;
(d) no registration of Registrable Securities effected under this
Section 4 shall relieve the Company of its obligation to effect a registration
of other Registrable Securities pursuant to Section 2 hereof;
(e) a Selling Holder may withdraw all or any part of such Holder's
Piggyback Securities from the proposed registration at any time prior to the
later of (i) the Effective Date of the related registration statement and (ii)
the execution of any underwriting agreement related thereto; and
(f) the Company may require that any Piggyback Securities be included
in the offering proposed by the Company on the same terms and conditions as the
Company Securities are included therein, provided the terms of any underwriting
agreement are consistent with the terms of this Agreement.
SECTION 5. Expenses. The Company will pay all Registration Expenses in
connection with (i) MSLEF II's two effected demand registrations of Xxxxxx
Holders' Registrable Securities pursuant to Section 2(a), (ii) SIBV's two
effected demand registrations of SIBV Holders' Registrable Securities pursuant
to Section 2(a) and (iii) all registrations of Selling Holders' Registrable
Securities pursuant to Section 4, except that with respect to any such
registration the Company shall not be obligated to pay underwriting discounts
or commissions or transfer taxes, if any, relating to the sale or disposition
of Selling Holders' Registrable Securities. In the event MSLEF II or SIBV
withdraws a Registration Notice or the Xxxxxx Holders or the SIBV Holders
abandon a registration statement or otherwise do not sell Registrable
Securities following a Registration Notice, then all Registration Expenses in
respect of such Registration Notice shall be borne by the Selling Holders;
provided, however, in the event of a Company Delay following which the Selling
Holders decide by notice in writing to the Company not to sell Registrable
Securities, the Company will pay all Registration Expenses and such shall not
be deemed to be a Demand for purposes of this Agreement. The Company will also
pay all Registration Expenses in connection with any registration of
Registrable Securities that is demanded by MSLEF II or SIBV pursuant to Section
2(a) but that, because of any of the reasons described in clauses (i), (ii) or
(iii) of Section 2(d), is not deemed to have been effected.
SECTION 6. Registration and Qualification. If and whenever the Company
is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 2 or 4
hereof, the Company will as promptly as is practicable:
(a) prepare and file with the SEC, as soon as possible, and use its
best efforts to cause to become effective, a registration statement under the
Securities Act relating to the Registrable Securities to be offered on such form
as MSLEF II or SIBV, as the case may be, or if not filed pursuant to a Demand,
the Company, determines and for which the Company then qualifies;
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
until the earlier of such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition set forth in
such registration statement or the expiration of nine months (or six months in
the event of a registration statement on Form S-1 (or any successor "long-form"
registration statement)) after such registration statement becomes effective;
provided that such six or nine month period shall be extended in the case of a
Demand for such number of days that equals the number of days elapsing from (i)
the date the written notice contemplated by Section 6(g) hereof is given by the
Company to (ii) the date on which the Company delivers to the Selling Holders
the supplement or amendment contemplated by Section 6(g) hereof;
(c) furnish to the Selling Holders and to any underwriter of
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities Act,
such documents incorporated by reference in such registration statement or
prospectus, and such other documents, as the Selling Holders or such underwriter
may reasonably request, and, if requested, a copy of any and all transmittal
letters or other correspondence to, or received from, the SEC or any other
governmental agency or self-regulatory body or other body having jurisdiction
(including any domestic or foreign securities exchange) relating to such
offering;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of such registration statement at the earliest
possible moment;
(e) subject to Section 14, use its best efforts to register or qualify
all Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions (domestic or foreign), and to
list or qualify for such securities exchanges and other trading markets, as
MSLEF II or SIBV, as the case may be, or any underwriter of Registrable
Securities shall request, and use its best efforts to obtain all necessary
registrations, permits and consents required in connection therewith, and do any
and all other acts and things which are reasonably requested to enable the
Selling Holder or any such underwriter to consummate the disposition in such
jurisdictions of the Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified, or to consent to general service of process in
any such jurisdiction;
(f) if requested by MSLEF II or SIBV, as the case may be, (i) furnish
to each Selling Holder an opinion of counsel for the Company addressed to each
Selling Holder and dated the date of the closing under the underwriting
agreement (if any) (or if such offering is not underwritten, dated the effective
date of the registration statement), and (ii) use its best efforts to furnish to
each Selling Holder a "cold comfort" letter addressed to each Selling Holder and
signed by the independent public accountants who have audited the Company's
financial statements included in such registration statement, in each such case
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
underwriters in underwritten public offerings of securities and such other
matters as the Selling Holders may reasonably request and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements;
(g) immediately notify the Selling Holders in writing (i) at any time
when a prospectus relating to a registration pursuant to Section 2 or 4 hereof
is required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (ii) of any request by the SEC or any other regulatory
body or other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case (i) or (ii) at the request of the Selling Holders prepare and
furnish to the Selling Holders a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(h) subject to Section 14, use its best efforts to list all such
Registrable Securities covered by such registration on each securities exchange
and inter-dealer quotation system on which a class of common equity securities
of the Company is then listed (and on each exchange and inter-dealer quotation
system requested by MSLEF II), and to pay all fees and expenses in connection
therewith; and
(i) furnish unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations and registered to such
persons or nominees as shall be requested by the Selling Holders or the
underwriters.
SECTION 7. Termination. This Agreement shall terminate upon the earlier
of: (i) the mutual agreement of the parties hereto; and (ii) December 31, 2010.
The rights and obligations of the Xxxxxx Holders shall also terminate after the
Xxxxxx Holders cease to own, in the aggregate, at least 1,000,000 shares of
Common Stock (not taking into account any shares purchased after the date
hereof). The rights and obligations of the SIBV Holders shall also terminate
after the SIBV Holders cease to own, in the aggregate, at least 1,000,000 shares
of Common Stock (not taking into account any shares purchased after the date
hereof other than shares purchased by an SIBV Holder from a Xxxxxx Xxxxxx).
Notwithstanding the foregoing, the provisions of Section 5, 6, 10 and 12 shall
survive any such termination of this Agreement or the rights and obligations of
the Xxxxxx Holders or the SIBV Holders, as the case may be.
SECTION 8. Underwriting; Due Diligence, Etc. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant
to a registration requested under this Agreement, the Company will enter into
an underwriting agreement with such underwriters for such offering, which, (x)
in the case of a Xxxxxx Demand, shall be in form reasonably acceptable to MSLEF
II and (y) in the case of a SIBV Demand, shall be in form reasonably acceptable
to SIBV, and which, in the case of a Company Registration Process, shall be in
form reasonably acceptable to the Company, any such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution (provided that any indemnities and contribution shall, unless
MSLEF II or the Agent (as defined below) or SIBV, as the case may be, agrees
otherwise, be to the effect and only to the extent provided in Section 10
hereof) and the provision of opinions of counsel and accountants' letters to
the effect and to the extent provided in Section 6(e) hereof; provided,
however, the Company may negotiate and agree to differing indemnification
obligations with respect to the underwriters, provided such indemnification
obligations (i) do not adversely affect the Selling Holders with respect to
their rights and obligations hereunder and (ii) shall not excuse the Company
from entering into (or delaying the execution of) an underwriting agreement on
the terms as provided herein. The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement, and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such Selling Holders. In no event shall any Selling Holder be required to make
any representation or warranty, other than as to its ownership of the
Registrable Securities and as to due authorization, execution and
enforceability with respect to it of the underwriting agreement. Such
underwriter shall be instructed to use its reasonable best efforts to affect a
wide distribution of the Common Stock so long as doing so shall not, in any
manner, adversely affect the marketing (including timing) or price of such
shares. The Company, if requested by MSLEF II or SIBV, as the case may be, or
the underwriters, will enter into an agreement with the Independent Underwriter
on customary terms.
(b) In the event that any registration pursuant to Section 4 shall
involve, in whole or in part, an underwritten offering, the Company may require
the Registrable Securities requested to be registered pursuant to Section 4 to
be included in such underwriting on the same terms and conditions as shall be
applicable to the other securities being sold through underwriters under such
registration.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act, the Company will give the Selling Holders and the underwriters, if any,
and their respective counsel and accountants, such reasonable and customary
access to its books and records and such opportunities to discuss the business
of the Company with its officers and the independent public accountants who
have certified the Company's financial statements as shall be necessary, in the
reasonable opinion of such Selling Holder and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act. The Selling Holders and the underwriters, if any, and their
respective counsel and accountants, shall use their reasonable best efforts to
coordinate and time their review so as to not unreasonably interfere with the
business and operations of the Company. Such information shall be governed by
confidentiality provisions comparable to those set forth in the Stockholders
Agreement.
(d) In the event an offering pursuant to this Agreement is not
underwritten, the Company, at the request of MSLEF II or the Agent or SIBV, as
the case may be, will enter into such agreements with any selling agents or
similar persons as are customary. Such agreements shall contain terms and
provisions analogous to those described herein and, to the extent not so
described, customary terms and provisions.
SECTION 9. Restrictions on Public Sale; Inconsistent Agreements. (a)
If any registration of (i) Registrable Securities pursuant to Section 2 shall
be in connection with an underwritten public offering, the Company, SIBV, MSLEF
II, Equity Investors, First Plaza and Leeway (as to themselves severally and,
except in the case of First Plaza or Leeway, as to their respective Affiliates)
agree not to, or (ii) Common Stock pursuant to Section 3 or 4 shall be in
connection with an underwritten public offering, SIBV, MSLEF II, Equity
Investors, First Plaza and Leeway (as to themselves severally and, except in
the case of First Plaza or Leeway, as to their respective Affiliates) agree not
to, effect any public sale or distribution including any sale pursuant to Rule
144 (except as part of such registration), of any of the Company's common
equity securities or of any security convertible into or exchangeable or
exercisable for any equity security of the Company (other than any such sale or
distribution of such securities in connection with any exchange offer, merger
or consolidation by the Company or a subsidiary of the Company or in connection
with the purchase of all or substantially all the assets of any other person or
in connection with an employee stock option or other benefit plan) during the
30 days prior to, and during the 180 day period beginning on, the Effective
Date of such registration statement, or for such shorter period required by the
underwriters of such offering; provided, however, that MSLEF II can waive any
of the foregoing obligations of any party in the case of any MSLEF II Demand
and SIBV can waive any of the foregoing obligations of any party in the case of
any SIBV Demand. For purposes of this Section 9, Leeway shall mean and be
limited to State Street Bank & Trust Company, as trustee for the Long Term
Investment Trust and any successor thereto and any investment advisor or
manager with discretionary investment authority with respect to the Registrable
Securities presently held by Leeway, including any affiliate of X.X. Xxxxxx &
Co., Inc. with discretionary investment authority with respect to such
Registrable Securities.
(b) The Company agrees (1) without the written consent of the
managing underwriters, not to effect any public or private sale or distribution
of the Company's common equity securities or any security convertible into or
exchangeable or exercisable for any equity security of the Company, including a
sale pursuant to Regulation D under the Securities Act, during a MSLEF II
Registration Process or a SIBV Registration Process (except (i) as part of such
underwritten registration or pursuant to registrations on Form S-4 or Form S-8
or any successor forms; or (ii) equity securities issued pursuant to the
conversion or exchange of any securities convertible into or exchangeable for
the Company's common equity securities and which were outstanding prior to the
commencement of the Registration Process, and (2) to use its best efforts to
cause each holder of its privately placed securities purchased from the Company
at any time on or after the date of this Agreement to agree not to effect any
public sale or distribution of any such securities during such period,
including a sale pursuant to Rule 144 (except as part of such underwritten
registration, if permitted).
SECTION 10. Indemnification and Contribution. (a) In the case of each
offering of Registrable Securities made pursuant to this Agreement, the Company
agrees to indemnify and hold harmless each Selling Holder, its partners or
trustees, each underwriter of Registrable Securities so offered, each person,
if any, who controls any of the foregoing persons within the meaning of the
Securities Act, and the officers, directors, trustees, beneficiaries and
advisors of any of the foregoing from and against any and all claims,
liabilities, losses, damages, expenses and judgments, joint or several, to
which they or any of them may become subject, under the Securities Act or
otherwise, including any amount paid in settlement of any litigation commenced
or threatened, and shall promptly reimburse them, as and when incurred, for any
legal or other expenses incurred by them in connection with investigating any
claims and defending any actions, insofar as such losses, claims, damages,
liabilities or actions shall arise out of, or shall be based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement (or in any preliminary or final prospectus included
therein) or in any offering memorandum or other offering document relating to
the offering and sale of such Registrable Securities, or any amendment thereof
or supplement thereto, or in any document incorporated by reference therein, or
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,
or shall arise out of or be based upon any violation or alleged violation by
the Company of the Securities Act, any blue sky laws, securities laws or other
applicable laws of any state or country in which the Registrable Securities are
offered and relating to action or inaction required of the Company in
connection with such offering; provided, however, that the Company shall not be
liable to a particular Selling Holder in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement, or any omission or alleged
omission, if such statement or omission shall have been made in reliance upon
and in conformity with information relating to such Selling Holder furnished to
the Company in writing by or on behalf of such Selling Holder expressly for use
in the preparation of the registration statement (or in any preliminary or
final prospectus included therein), offering memorandum or other offering
document, or any amendment thereof or supplement thereto or a document
incorporated by reference in any of the foregoing. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf
of a Selling Holder and shall survive the transfer of such securities. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to each Selling Holder, its partners, underwriters of the
Registrable Securities, any controlling person of any of the foregoing or any
officer or director of any of the foregoing.
(b) In the case of each offering made pursuant to this Agreement,
each Selling Holder included in such offering, by exercising its registration
rights hereunder, agrees to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of the Securities
Act (and if requested by the underwriters, each underwriter who participates in
the offering and each person, if any, who controls any such underwriter within
the meaning of the Securities Act), and the officers and directors of any of
the foregoing from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any of them
may become subject, under the Securities Act or otherwise, including any amount
paid in settlement of any litigation commenced or threatened, and shall
promptly reimburse them, as and when incurred, for any legal or other expenses
incurred by them in connection with investigating any claims and defending any
actions, insofar as any such losses, claims, damages, liabilities or actions
shall arise out of, or shall be based upon, any untrue statement or alleged
untrue statement of a material fact contained in the registration statement (or
in any preliminary or final prospectus included therein) or in any offering
memorandum or other offering document relating to the offering and sale of such
Registrable Securities, or any amendment thereof or supplement thereto, or in
any document incorporated by reference therein, or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
such untrue statement of a material fact is contained in, or such material fact
is omitted from, information relating to such Selling Holder furnished in
writing to the Company by or on behalf of such Selling Holder expressly for use
in the preparation of such registration statement (or in any preliminary or
final prospectus included therein), offering memorandum or other offering
document or a document incorporated by reference in any of the foregoing. The
foregoing indemnity is in addition to any liability which such Selling Holder
may otherwise have to the Company, or any of its directors, officers or
controlling persons. In no event shall the liability of a Selling Holder
hereunder be greater in amount than the dollar amount of the net proceeds
received by it upon the sale of the Registrable Securities pursuant to such
offering.
(c) Each party indemnified under paragraph (a) or (b) of this Section
10 shall, promptly after receipt of notice of any claim or the commencement of
any action against such indemnified party in respect of which indemnity may be
sought, notify the indemnifying party in writing of the claim or the
commencement thereof; provided that the failure of the indemnified party to
notify the indemnifying party shall not relieve the indemnifying party from any
liability which it may have to an indemnified party on account of the indemnity
agreement contained in paragraph (a) or (b) of this Section 10, unless the
indemnifying party was materially prejudiced by such failure, and in no event
shall relieve the indemnifying party from any other liability which it may have
to such indemnified party. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable (except to the extent the proviso to this sentence is
applicable, in which event it will be so liable) to the indemnified party under
this Section 10 for any legal expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs of
investigation; provided that each indemnified party shall have the right to
employ separate counsel to represent it and assume its defense (in which case,
the indemnifying party shall not represent it) if, in the reasonable judgment
of such indemnified party, (i) upon the advice of counsel, the representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, or (ii) in the event the
indemnifying party has not assumed the defense thereof within 10 days of
receipt of notice of such claim or commencement of action, and in which case
the fees and expenses of one such separate counsel shall be paid by the
Company. The indemnifying party shall not be responsible for providing
indemnification with respect to any settlement agreement which is not approved
by it prior to its execution, such approval not to be unreasonably withheld. If
the indemnifying party so assumes the defense thereof, it may not agree to any
settlement of any such claim or action (i) as the result of which any remedy or
relief, other than monetary damages for which the indemnifying party shall be
responsible hereunder, shall be applied to or against the indemnified party, or
(ii) unless such settlement includes an unconditional release of liability in
favor of the indemnified party, in each case without the prior written consent
of the indemnified party. In any action hereunder as to which the indemnifying
party has assumed the defense thereof with counsel satisfactory to the
indemnified party, the indemnified party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but, except
as set forth above, the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs thereof.
(d) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in
respect thereof, in such proportion as shall be appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to whether the 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 indemnifying party on the one hand or the
indemnified party on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission, but not by reference to any indemnified party's stock
ownership in the Company. In no event, however, shall a Selling Holder be
required to contribute in excess of the amount of the net proceeds received by
such Selling Holder in connection with the sale of Registrable Securities in
the offering which is the subject of such loss, claim, damage or liability. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
paragraph shall be deemed to include, for purposes of this paragraph, any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 12(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
SECTION 11. Rule 144. The Company shall take such measures and file
such information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 and Rule 144A (or any successor
provisions).
SECTION 12. Miscellaneous. (a) Injunctions. Irreparable damage would
occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise breached.
Therefore, the parties hereto shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court having jurisdiction,
such remedy being in addition to any other remedy to which they may be entitled
at law or in equity.
(b) Severability. If any term or provision of this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms and provisions 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 or provision.
(c) Further Assurances. If any term or provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms and provisions 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 or provision.
(d) Waivers, Etc. No failure or delay on the part of any party hereto
(or the intended third party beneficiaries referred to herein) in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. No
modification or waiver of any provision of this Agreement nor consent to any
departure therefrom shall in any event be effective unless the same shall be in
writing, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Any waiver agreed to by
MSLEF II shall be binding upon the Xxxxxx Holders.
(e) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof. The
section headings contained in this Agreement are solely for the purpose of
reference, and shall not in any way affect the meaning or interpretation of
this Agreement. This Agreement shall not be amended or modified except by
written instrument executed by the parties hereto; provided that the Company
and MSLEF II may amend this Agreement (A) without the consent of the other
parties hereto (other than SIBV) and (B) without the consent of SIBV (in its
capacity as a party to this Agreement, as opposed to any ability it may have to
direct the Company) so long as (i) such amendment does not directly or
indirectly adversely affect the rights or obligations of SIBV hereunder or SIBV
other than in its capacity as a stockholder of the Company or (ii) SIBV owns
less than 5% of the outstanding voting securities of the Company; provided,
further that the Company and SIBV may amend this Agreement (A) without the
consent of the other parties hereto (other than MSLEF II) and (B) without the
consent of MSLEF II (in its capacity as a party to this Agreement, as opposed
to any ability it may have to direct the Company) so long as such amendment
does not directly or indirectly adversely affect the rights or obligations of
any Xxxxxx Xxxxxx or its Affiliates hereunder or any Xxxxxx Xxxxxx and its
Affiliates other than in their capacities as stockholders of the Company. Any
amendment agreed to by MSLEF II shall be binding upon the Xxxxxx Holders.
(f) Counterparts. For the convenience of the parties, this Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original but all of which together shall be one and the same instrument.
(g) Notices. All notices, consents, requests, instructions, approvals
and other communications provided for herein shall be validly given, made or
served, if in writing and delivered personally, by facsimile or sent by
registered mail, postage prepaid as follows:
(i)if to MSLEF II or any Xxxxxx Xxxxxx, to:
Xxxxxx Xxxxxxx Leveraged Equity Fund II, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Capital Partners
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
(ii)if to SIBV or any SIBV Holder, to:
Smurfit International X.X.
Xxxxxxxxxxxxxx 0000
Xxxxxxxxx 1077ZZ, The Netherlands
Attention: Rokin Corporate Services B.V.
Fax No.: 000-0000-000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
Xxxxxxx Xxx
Xxxxxxxxxx Xxxxx,
Xxxxxx Xxxxx
Xxxxxx 0, Xxxxxxx
Attention: Houghton Fry, Esq.
Fax: 000-0-000-0000
(iii)if to the Company, to:
Jefferson Smurfit Corporation
Jefferson Smurfit Centre
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.,
Vice President and General Counsel
Fax No.: (000) 000-0000
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000-0000
or such other address as any party may, from time to time, designate in a
written notice in a like manner; provided that notices of a change of address
shall be effective only upon receipt thereof. Notice given by facsimile shall
be deemed delivered five calendar days after the date the same is mailed.
(h) WAIVER OF JURY TRIAL, ETC. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE PARTIES AGREE, SOLELY IN RESPECT OF THE INTERPRETATION AND
ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, TO SUBMIT TO THE EXCLUSIVE
JURISDICTION OF, AND TO WAIVE ANY OBJECTION AS TO VENUE IN THE FEDERAL OR STATE
COURTS LOCATED IN, THE COUNTY OF NEW YORK, STATE OF NEW YORK. SERVICE OF
PROCESS IN ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
EFFECTIVE IF DELIVERED OR SENT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
12(G) HEREOF.
(i) Assignment. Except as provided herein, the parties may not assign
their rights under this Agreement; provided that (x) any Xxxxxx Xxxxxx may
assign and delegate its rights and obligations under this Agreement to any
other Xxxxxx Xxxxxx and (y) First Plaza Group Trust and Leeway & Co. shall have
the right to assign this Agreement to one or more successor trustees, plans or
nominees for, or successors by reorganization of, a qualified pension trust.
The Company may not delegate its obligations under this Agreement. Any action
required or permitted to be taken by the Xxxxxx Holders pursuant to this
Agreement shall be taken by MSLEF II. Subject to Section 12(e), any Xxxxxx
Xxxxxx or SIBV Holder that is not a party hereto shall be a third party
beneficiary of the rights granted under this Agreement (provided that the
ability of such Person to exercise the registration rights set forth herein
shall be subject to the obligations imposed on such Person under this
Agreement) as of and after the time, if any, as may be provided in any
agreement between MSLEF II and such Xxxxxx Xxxxxx or SIBV Holder, as the case
may be.
SECTION 13. Representations and Warranties. (a) SIBV represents to the
other parties hereto that it is duly incorporated and validly existing as a
corporation under the laws of The Netherlands; that it has the power and
authority under its articles of incorporation or similar charter document to
enter into and perform this Agreement; that the execution of this Agreement by
it has been duly authorized by all required corporation actions; that the
consummation of the transactions contemplated hereunder will not result in a
breach or violation of, or a default under, its certificate of incorporation
(or similar charter document) or by-laws, or any material agreement by which it
is subject, nor require the obtaining of any consent, approval, permit or
license from or filing with, any governmental authority or other Person by it
in connection with the execution, delivery and performance by it of this
Agreement, except for violations which would not, or consents or filings which,
if not obtained or made, would not, in the aggregate, affect materially and
adversely the business, financial condition or results of operation of SIBV and
its subsidiaries, taken as a whole; that this Agreement constitutes (assuming
its due authorization and execution by the other parties hereto) its legal,
valid and binding obligation; and that, as of the date hereof, it and its
Affiliates beneficially own, in the aggregate, the number of shares of Common
Stock of the Company set forth opposite its name on Schedule I attached hereto.
(b) Each of The MSLEF II Fund and Equity Investors represents to the
other parties hereto that it is a limited partnership duly organized and validly
existing under the laws of its jurisdiction of organization; that it has the
power and authority under its agreement of limited partnership to enter into and
perform this Agreement; that the execution of this Agreement by it has been duly
authorized by all required partnership action; that the consummation of the
transactions contemplated hereunder will not result in a breach or violation or,
or a default under, its agreement of limited partnership or under any agreement
of partnership of the general partner, or any material agreement by which it or
any of its properties or any of its general partner's properties is bound or any
statute, rule, regulation, order or other law to which it is subject, nor
require the obtaining of any consent, approval, permit or license from or filing
with, any governmental authority or other Person by MSLEF II or Equity
Investors, respectively, in connection with the execution, delivery and
performance by it of this Agreement, except for violations which would not, or
consents or filing which, if not obtained or made, would not, in the aggregate,
affect materially and adversely the business, financial condition or results of
operation of MSLEF II and its subsidiaries, taken as a whole, respectively; that
this Agreement constitutes (assuming its due authorization and execution by the
other parties hereto) its legal, valid and binding obligation; and that, as of
the date hereof, it beneficially owns the number of shares of Common Stock of
the Company set forth opposite its name on Schedule I attached hereto.
(c) Each of MSLEF II and Equity Investors Inc. represents to the
other parties hereto that it is duly incorporated and validly existing as a
corporation under the laws of the state of its incorporation, and is in good
standing therein; that it has the power and authority under its certificate of
incorporation to enter into and perform this Agreement; that the execution of
this Agreement by it has been duly authorized by all required corporate
actions; that the consummation of the transactions contemplated hereunder will
not result in a breach or violation of, or a default under, its certificate of
incorporation, its by-laws, or any material agreement by which it or any of its
properties is bound or any statute, rule, regulation, order or other law to
which it is subject, nor require the obtaining of any consent, approval, permit
or license from, or filing with, any governmental authority or other Person by
MSLEF II, Inc. or Equity Investors Inc., respectively, in connection with the
execution, delivery and performance by it of this Agreement, except for
violations which would not, or consents or filings which, if not obtained or
made, would not, in the aggregate, affect materially and adversely the
business, financial condition or results of operation of MSLEF II, Inc. and its
subsidiaries, taken as a whole, or Equity Investors Inc. and its subsidiaries,
taken as a whole, respectively; that this Agreement constitutes (assuming its
due authorization and execution by the other parties hereto) its legal, valid
and binding obligation; and that, as of the date hereof, it beneficially owns
the number of shares of Common Stock of the Company set forth opposite its name
Schedule I attached hereto.
(d) The Company represents to the other parties hereto that it is duly
incorporated and validly existing as a corporation under the laws of the state
of Delaware, and is in good standing therein; that it has the power and
authority under its certificate of incorporation to enter into and perform this
Agreement; that the execution of this Agreement by it has been duly authorized
by all required corporate actions; that the consummation of the transactions
contemplated hereunder will not result in a breach or violation of, or a default
under, its certificate or incorporation, its by-laws, or any material agreement
by which it or any of its properties is bound or any statute, rule, regulation,
order or other law to which it is subject, nor require the obtaining of any
consent, approval, permit or license from, or filing with, any governmental
authority or other Person by the Company in connection with the execution,
delivery and performance by it of this Agreement, except for violations which
would not, or consents or filings which, if not obtained or made, would not, in
the aggregate, affect materially and adversely the business, financial condition
or results of operations of the Company and its subsidiaries, taken as a whole;
that this Agreement constitutes (assuming its due authorization and execution by
the other parties hereto) its legal, valid and binding obligation.
(e) First Plaza represents and warrants to the other parties hereto
that it has the full power and authority to execute and deliver this Agreement;
that this Agreement has been duly authorized, executed and delivered by First
Plaza and constitutes (assuming its due authorization and execution by the other
parties hereto) its legal, valid and binding obligation; and that, as of the
date hereof, it beneficially owns the number of shares of Common Stock of the
Company set forth opposite its name on Schedule I attached hereto.
(f) Leeway represents and warrants to the other parties hereto that it
has the full power and authority to execute and deliver this Agreement; that
this Agreement has been duly authorized, executed and delivered by Leeway and
constitutes (assuming its due authorization and execution by the other parties
hereto) its legal, valid and binding obligation; and that, as of the date
hereof, it beneficially owns the number of shares of Common Stock of the Company
set forth opposite its name on Schedule I attached hereto (except that Leeway
acts as nominee for State Street Bank and Trust Company and Trust Company as
Trustee for The Long Term Investment Trust).
SECTION 14. Ireland Listing. Notwithstanding anything herein to the
contrary, without the prior written consent of SIBV, neither MSLEF II nor any
underwriter may require the Company to, and the Company shall not, effect the
listing of any Registrable Securities on the Irish Stock Exchange.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SMURFIT INTERNATIONAL B.V.
By: /s/ Houghton Fry
-------------------------------
Name: Houghton Fry
Title: Attorney-in-Fact
THE XXXXXX XXXXXXX LEVERAGED
EQUITY FUND II, L.P.
By: Xxxxxx Xxxxxxx Leveraged Equity
Fund II, Inc. (general partner)
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice Chairman
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SIBV/MS EQUITY INVESTORS, L.P.
By: Xxxxxx Xxxxxxx Equity
Investors Inc.
(general partner)
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXXX XXXXXXX EQUITY
INVESTORS, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXXX XXXXXXX LEVERAGED
EQUITY HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice Chairman
FIRST PLAZA GROUP TRUST
By: Mellon Bank, N.A., solely in its
capacity as trustee for First Plaza
Group Trust (as directed by General
Motors Investment Management
Corporation) and not in its individual
capacity
By: /s/ Xxxxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxxxxx X. Xxxx
Title: Authorized Signatory
LEEWAY & CO.
By: State Street Bank and Trust Company,
a partner
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
JEFFERSON SMURFIT CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Chief
Financial Officer
THE XXXXXX XXXXXXX LEVERAGED
EQUITY FUND, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice Chairman
SCHEDULE I
Stockholder Name Shares
---------------------------------------------------------- ----------
Smurfit International B.V. and subsidiaries 51,638,462
The Xxxxxx Xxxxxxx Leveraged Equity Fund II, L.P. 30,527,880
Xxxxxx Xxxxxxx Leveraged Equity Fund II, Inc. 1,046,660
SIBV/MS Equity Investors, L.P. 225,460
First Plaza Group Trust 5,000,000
Leeway & Co. 3,000,000
