EXHIBIT 10.5
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CAF HOLDINGS, INC.
INVESTOR RIGHTS AGREEMENT
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DATED AS OF JANUARY __, 2001
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TABLE OF CONTENTS
PAGE NO.
SECTION 1. COVENANTS, REPRESENTATIONS AND WARRANTIES.....................................1
SECTION 2. RESTRICTIONS ON TRANSFER OF STOCKHOLDER SHARES................................2
2A. Restrictions on Transfer.............................................................2
2B. Right of First Offer. ...............................................................2
2C. Participation Rights.................................................................3
2D. Permitted Transfers..................................................................4
2E. Termination of Restrictions..........................................................5
SECTION 3. SALE OF THE COMPANY.......................................................... 5
3A. Approved Sale........................................................................5
3B. Required Actions.....................................................................5
3C. Conditions to Stockholders' Obligations..............................................6
3D. Rule 506 Transaction.................................................................6
3E. Expenses of Approved Sale............................................................6
3F. Termination..........................................................................7
SECTION 4. LIMITED PREEMPTIVE RIGHTS.....................................................7
4A. Offering.............................................................................7
4B. Election Notice......................................................................8
4C. Expiration of Offering Period........................................................8
4D. Termination..........................................................................8
SECTION 5. PUBLIC OFFERING...............................................................8
SECTION 6. LEGEND........................................................................8
SECTION 7. TRANSFER......................................................................9
SECTION 8. BOARD OF DIRECTORS; VOTING....................................................9
8A. Composition of the Board.............................................................9
8B. Board Meeting Expenses..............................................................11
8C. Other Voting Matters................................................................11
8D. Irrevocable Proxy...................................................................12
SECTION 9. DEMAND REGISTRATIONS.........................................................12
9A. Requests for Registration...........................................................12
9B. Long-Form Registrations.............................................................13
9C. Short-Form Registrations............................................................13
9D. Priority on Demand Registrations....................................................13
9E. Restrictions on Demand Xxxxxxxxxxxxx................................................00
0X. Selection of Underwriters...........................................................14
9G. Other Registration Rights...........................................................14
9H. Demand Registration Expenses........................................................14
SECTION 10. PIGGYBACK REGISTRATIONS......................................................14
10A. Right to Piggyback..................................................................14
10B. Piggyback Expenses..................................................................14
10C. Priority on Primary Registrations...................................................14
10D. Other Registrations.................................................................15
10E. Postponement or Withdrawal..........................................................15
SECTION 11. HOLDBACK AGREEMENTS..........................................................15
11A. Agreement of Holders of Registrable Securities......................................15
11B. Company Agreement...................................................................15
SECTION 12. REGISTRATION PROCEDURES......................................................15
SECTION 13. REGISTRATION EXPENSES........................................................18
13A. Company Expenses....................................................................18
13B. Reimbursement.......................................................................18
SECTION 14. INDEMNIFICATION..............................................................19
14A. Indemnification Obligation of the Company...........................................19
14B. Indemnification of the Company......................................................19
14C. Indemnification Procedures..........................................................19
14D. Other Indemnification Provisions....................................................20
SECTION 15. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS..................................20
SECTION 16. RESTRICTIONS AND FINANCIAL REPORTING.........................................20
SECTION 17. DEFINITIONS..................................................................23
SECTION 18. MISCELLANEOUS................................................................28
18A. Transfers in Violation of Agreement.................................................28
18B. Amendment and Waiver................................................................28
18C. Severability........................................................................28
18D. Entire Agreement....................................................................29
18E. No Inconsistent Agreements..........................................................29
18F. Adjustments Affecting Registrable Securities........................................29
18G. Successors and Assigns..............................................................29
18H. Counterparts........................................................................29
18I. Remedies............................................................................29
18J. Notices.............................................................................29
18K. Governing Law.......................................................................30
18L. Descriptive Headings................................................................31
SCHEDULES
Schedule of Rollover Participants
Schedule of Sponsors
Schedule of Coinvestors
Schedule of New Stockholders
INVESTOR
RIGHTS AGREEMENT
THIS INVESTOR
RIGHTS AGREEMENT (this "AGREEMENT") is entered into
as of January __, 2001, by and among (i) CAF Holdings Inc., a Virginia
corporation (the "COMPANY"), (ii) OCM Principal Opportunities Fund II, L.P., a
Delaware limited partnership ("OAKTREE"), (ii) BancAmerica Capital Investors II,
L.P., a Delaware limited partnership ("BACI"), (iii) each of the Persons listed
on the attached "SCHEDULE OF ROLLOVER PARTICIPANTS", (collectively, the
"ROLLOVER PARTICIPANTS"), (iv) each of the Persons listed on the attached
"SCHEDULE OF COINVESTORS" (collectively, the "COINVESTORS"), (v) any executive
employee of the Company who, at any time, acquires securities of the Company and
executes a counterpart of this Agreement or otherwise agrees to be bound by this
Agreement (each, an "EXECUTIVE" and collectively, the "EXECUTIVES"), and (vi)
each other Person listed from time to time on the attached "SCHEDULE OF NEW
STOCKHOLDERS", as amended from time to time by the Company with the consent of
the Required Sponsors, who at any time acquires securities of the Company,
executes a counterpart of this Agreement or otherwise agrees to be bound by this
Agreement (such Persons being referred to collectively as the "NEW
STOCKHOLDERS"). Oaktree and BACI are referred to herein collectively as the
"SPONSORS" and individually as a "SPONSOR." The Sponsors, the Rollover
Participants, the Coinvestors, the Executives and the New Stockholders are
referred to herein collectively as the "Stockholders" and individually as a
"STOCKHOLDER." Capitalized terms used herein and not otherwise defined are
defined in SECTION 17 hereof.
The Company, the Sponsors, the Coinvestors and the Rollover
Participants are parties to the Recapitalization Agreement dated as of December
4, 2000 (as amended from time to time, the "RECAPITALIZATION AGREEMENT").
Pursuant to the Recapitalization Agreement, the Sponsors, the Coinvestors and
the Rollover Participants are all holders of all of the Company's capital stock.
Among other reasons, the parties hereto enter into this Agreement (i) to provide
for an orderly election of the Company's board of directors, (ii) to restrict
the sale, assignment, transfer, encumbrance or other disposition of the
Stockholder Shares, and (iii) to provide for certain rights and obligations in
respect thereto.
NOW, THEREFORE, the parties to this Agreement hereby agree as
follows:
SECTION 1. COVENANTS, REPRESENTATIONS AND WARRANTIES
Each Stockholder covenants, represents and warrants that, (i)
this Agreement has been duly authorized, executed and delivered by such
Stockholder and constitutes the valid and binding obligation of such
Stockholder, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties and general
principles of equity, (ii) such Stockholder is the record and beneficial owner
of the shares of Company capital stock issued to, or retained by, such
Stockholder in the transactions contemplated by the Recapitalization Agreement,
free and clear of all liens, charges and other encumbrances, and (iii) such
Stockholder has not granted and is not a party to any proxy, voting trust or
voting agreement or any agreement which is inconsistent with, conflicts with or
violates any provision of this Agreement. No holder of Stockholder Shares shall
grant any proxy or become party to any voting trust, voting agreement or any
agreement which is inconsistent with, conflicts with or
violates any provision of this Agreement.
PROVISIONS RELATING TO TRANSFER; SALE OF THE COMPANY;
PUBLIC OFFERING; PREEMPTIVE RIGHTS
SECTION 2. RESTRICTIONS ON TRANSFER OF STOCKHOLDER SHARES
2A. RESTRICTIONS ON TRANSFER. No holder of Stockholder Shares
shall sell, transfer, assign, pledge or otherwise directly or indirectly dispose
of (a "TRANSFER") any interest in any of its Stockholder Shares (other than
shares acquired in the public open market in a transaction effected on a
national securities exchange or through the NASDAQ System or the
over-the-counter market), except pursuant to and in accordance with the
provisions of SECTIONS 2B or 2C, pursuant to and in accordance with the
provisions of SECTION 3 or pursuant to and in accordance with a Public Sale or
an Exempt Transfer (as defined in SECTION 2D). Notwithstanding SECTION 18B below
but subject to the proviso following, this SECTION 2A may be waived or amended
by the Company and Required Sponsors to permit a Coinvestor (the "TRANSFERRING
COINVESTOR") to consummate a Transfer of Stockholder Shares that, but for such
waiver or amendment, would be prohibited by this SECTION 2A, only if the
Transferring Coinvestor ensures that each other Coinvestor is entitled to
participate in such Transfer (in the manner in which such Coinvestor would be
permitted to participate pursuant to SECTION 2C if the Transferring Coinvestor
were a Sponsor); PROVIDED that, notwithstanding and without giving effect to the
foregoing, the Company and the Required Sponsors may, pursuant to SECTION 18B,
waive the provisions of this SECTION 2A in respect of any Transfer of
Stockholder Shares by a Coinvestor if the Required Sponsors determine in good
faith, based on representations and warranties by the Transferring Coinvestor,
that the proposed Transfer by the Transferring Coinvestor will or is intended to
enable compliance with regulatory or other legal requirements or in response to
other adverse circumstance applicable to such Coinvestor, and not generally
applicable to other Persons.
2B. RIGHT OF FIRST OFFER. Following the third anniversary of
the date hereof, at least thirty days prior to making any Transfer by any Quad-C
Stockholder of any Stockholder Shares (other than pursuant to and in accordance
with the provisions of SECTION 3, or a Public Sale or an Exempt Transfer), the
transferring Quad-C Stockholder (the "TRANSFERRING STOCKHOLDER") shall deliver a
written notice (an "OFFER NOTICE") to the Company and the other Stockholders
(the "OTHER STOCKHOLDERS"). The Offer Notice shall disclose in reasonable detail
the proposed number of each type or class of Stockholder Shares to be
transferred, the proposed terms and conditions of the Transfer, including the
proposed price by class or type of each of such Stockholder Shares to be
transferred (which shall be payable in cash or notes), and the identity of the
prospective transferee(s) (if known). No Transfer shall be consummated prior to
the earlier of (i) the date on which the parties to the Transfer have been
finally determined pursuant to this SECTION 2B and (ii) the date of expiration
of the 30-day period (the "ELECTION PERIOD") following the delivery to the
Company and the Other Stockholders of the Offer Notice applicable to such
Transfer. First, the Company may elect to purchase all or any portion of the
Stockholder Shares specified in the Offer Notice at the price and on the terms
specified therein by delivering written notice of such election to the
Transferring Stockholder and the Other Stockholders within 20 days after the
delivery of the Offer Notice. If the Company has not
elected to purchase all of the Stockholder Shares to be transferred, the Other
Stockholders may elect to purchase all (but not less than all) of the
Stockholder Shares that the Company has not elected to purchase (the "AVAILABLE
SHARES") upon the same terms and conditions as those set forth in 1the Offer
Notice by giving written notice of such election to such Transferring
Stockholder within 30 days after the Offer Notice has been given to the Other
Stockholder. If more than one Other Stockholder elects to purchase the Available
Shares, with respect to each class of Available Shares, such Available Shares
shall be allocated among the Other Stockholders pro rata on the basis of the
number of Stockholder Shares of such class held by such Other Stockholder. If
the Company and the Other Stockholders do not elect to purchase in the aggregate
all of the Stockholder Shares specified in the Offer Notice, the Transferring
Stockholder may Transfer all of the Stockholder Shares specified in the Offer
Notice at a price no less than 95% of the price per share set forth in the Offer
Notice and on terms no more favorable to the transferee(s) thereof than
specified in the Offer Notice during the 90-day period immediately following the
end of the Election Period. Any Stockholder Shares not transferred within such
90-day period will be subject to the provisions of this SECTION 2B upon
subsequent transfer. If the Company and the Other Stockholders have elected to
purchase Stockholder Shares hereunder, the transfer of such Stockholder Shares
shall be consummated as soon as practicable after the delivery of the election
notice(s) to the Transferring Stockholder, but in any event within 20 days after
such delivery. Notwithstanding the foregoing, in no event shall any Quad-C
Stockholder Transfer Stockholder Shares to a competitor of the Company or any of
its Subsidiaries.
2C. PARTICIPATION RIGHTS.
(i) At least thirty days prior to the Transfer of any
Stockholder Shares by any Sponsor (or one of its Affiliates) (other than a
Public Sale or an Exempt Transfer), the transferring Sponsor (the "TRANSFERRING
SPONSOR") shall deliver a written notice (the "SALE NOTICE") to the Company and
the Other Stockholders. The Sale Notice shall disclose in reasonable detail the
proposed number of each type or class of Stockholder Shares (the "TRANSFER
SHARES") to be transferred, the proposed terms and conditions of the Transfer,
including the proposed price by class or type of each of such Stockholder Shares
to be transferred, and the identity of the prospective transferee(s). No
Transfer shall be consummated prior to the earlier of (i) the date on which the
parties to the Transfer have been finally determined pursuant to this SECTION 2C
and (ii) the date of expiration of the 30-day period (the "ELECTION PERIOD")
following the delivery to the Company and the Other Stockholders of the Sale
Notice applicable to such Transfer. Each Stockholder may elect to participate in
a Transfer by the Transferring Sponsor of any class of Transfer Shares owned by
such Transferring Sponsor contemplated in a Sale Notice by delivering written
notice of such election to such Transferring Sponsor within 30 days after
delivery of the Sale Notice. If any Other Stockholders elect to participate in
such Transfer (such Other Stockholders being referred to as the "PARTICIPATING
STOCKHOLDERS"), each of such Transferring Sponsor and the Participating
Stockholders shall be entitled to sell in the contemplated Transfer, at the same
price and on the same terms, a number of Stockholder Shares of such class (the
"PARTICIPATING SHARES") equal to the PRODUCT of (A) the QUOTIENT determined by
dividing the number of Stockholder Shares of such class held by such Person, by
the number of Stockholder Shares held by such Transferring Sponsor and all of
the Participating Stockholders (including such Person), and (B) the aggregate
number of Transfer Shares of such class to be sold in the contemplated Transfer;
PROVIDED that if the Transfer Shares include both shares of Common Stock and
shares of Preferred Stock, each Other Stockholder electing to participate in
such Transfer shall be entitled, and at the election of such Transferring
Sponsor shall be required, to include shares of Common Stock and Preferred Stock
in the same proportion as the proportion in which such Transferring Sponsor
includes shares of Common Stock and shares of Preferred Stock in such Transfer.
(ii) The Transferring Sponsor will use reasonable efforts to
obtain the agreement of the prospective transferee(s) to the participation of
the Participating Stockholders in any contemplated Transfer, and shall not
consummate any such Transfer unless each Participating Shareholder is permitted
to sell Participating Shares in such Transfer in the amount and on the terms set
forth in this SECTION 2C (PROVIDED that if the prospective transferee declines
to allow the participation of any Participating Stockholder, as an alternative
such Transferring Sponsor may consummate the proposed Transfer so long as
contemporaneously therewith such Transferring Sponsor purchases from such
Participating Stockholder all of such Participating Stockholder's Participating
Shares at the same price and on the same terms as such Transferring Stockholder
transferred Stockholder Shares to such transferee). Each Participating
Stockholder transferring Participating Shares pursuant to this SECTION 2C shall
pay (x) the expenses incurred by such Participating Stockholder in connection
with the Transfer and (y) its pro rata share (according to the value of the
Stockholder Shares transferred by such Participating Holder) of the expenses
incurred by such Transferring Sponsor in connection with such transfer, and each
such Stockholder shall be obligated to join in any indemnification or other
obligations that such Transferring Sponsor agrees to provide in connection with
such transfer (except that, while each Participating Stockholder shall be
obligated to make representations and warranties as to such Stockholder's title
to and ownership of Stockholder Shares, authorization, execution and delivery of
relevant documents by such Stockholder, enforceability of relevant agreements
against such Stockholder and other matters relating to such Stockholder, to
enter into covenants in respect of the proposed Transfer of such Stockholder's
Participating Shares and to enter into indemnification obligations with respect
to the foregoing, in each case to the extent that such Transferring Sponsor is
similarly obligated in connection with its proposed Transfer of Stockholder
Shares, no Stockholder shall be obligated to enter into indemnification
obligations with respect to any of the foregoing to the extent relating to any
other Stockholder or such other Stockholder's Stockholder Shares). In no event
shall any Stockholder be liable in respect of any indemnity obligation pursuant
to any Transfer under this SECTION 2C in an amount in excess of the total
consideration payable to such Stockholder in such Transfer.
2D. PERMITTED TRANSFERS. The restrictions set forth in this
SECTION 2 shall not apply to transfers by the Stockholders to transferees
("PERMITTED TRANSFEREES") with respect to the following transfers:
(i) subject to the paragraph below, any Transfer of Stockholder
Shares by any Stockholder to any of its Affiliates,
(ii) in the case of an individual, a Transfer of Stockholder
Shares by any Stockholder pursuant to the laws of descent and distribution or
among such Stockholder's Family Group,
(iii) an Approved Sale, and
(iv) subject to the last paragraph of this SECTION 2D below and
to the prior written consent of the Required Sponsors (which consent shall not
be unreasonably withheld), in the case of any Stockholder which is not an
individual, to a successor corporation or other successor entity as a result of
a merger or consolidation with, or a sale of all or substantially all of the
assets of, such Stockholder, if a general or limited partnership, to its
partners in connection with the liquidation and dissolution of such partnership
or, if a limited liability company, to its members in connection with the
liquidation and dissolution of such limited liability company.
Not less than 20 days prior to any Transfer of Stockholder Shares pursuant to
the foregoing clauses (i), (ii), (iv) or (v) of the previous sentence, the
transferee thereof will deliver a written notice to the Company, which notice
will disclose in reasonable detail the identity of such transferee. In addition,
notwithstanding anything to the contrary herein, the restrictions contained in
this Agreement will continue to be applicable to the Stockholder Shares
following any Transfer pursuant to this SECTION 2C, and the transferee of such
Stockholder Shares shall agree in writing to be bound by the provisions of this
Agreement. No Stockholder shall avoid the provisions of this Agreement by making
one or more transfers to one or more Permitted Transferees and then disposing of
all or any portion of such party's interest in any such Permitted Transferee,
and any Transfer or attempted Transfer in violation of this covenant shall be
void and otherwise subject to SECTION 18A below. Except as otherwise provided
herein, the transfer of equity interests in any Stockholder shall be deemed a
Transfer of the Stockholder Shares held by such Stockholder for purposes of this
SECTION 2. Notwithstanding the foregoing, a transfer of equity interests in a
Stockholder who is a party hereto on the date hereof will not be deemed to be a
Transfer of the Stockholder Shares held by such Stockholder if individuals who
as of the date hereof own securities or interests having, by their terms, voting
power to elect the managing member, the general partner, the managing director
or a majority of the members of the board of directors of, or other persons
performing similar functions with respect to, such Stockholder, and if such
Stockholder is a limited liability company, partnership, association or other
business entity, are allocated a majority of such Stockholder's limited
liability company, partnership, association or other business entity gains or
losses, continue immediately after such Transfer to own securities or interests
having, by their terms, voting power to elect the managing member, the managing
director, the general partner or a majority of the members of the board of
directors of, or other persons performing similar functions with respect to,
such Stockholder and, if such Stockholder is a limited liability company,
partnership, association or other business entity, continue to be allocated a
majority of such Stockholder's limited liability company, partnership,
association or other business entity gains or losses. Any Transfer permitted
pursuant to this SECTION 2C is referred to herein as an "EXEMPT TRANSFER".
2E. TERMINATION OF RESTRICTIONS. The restrictions set forth in
this SECTION 2 shall continue with respect to each Stockholder Share until the
earlier of (i) the date on which
such Stockholder Share has been transferred in a Public Sale, (ii) a Public
Offering and (iii) the consummation of an Approved Sale.
SECTION 3. SALE OF THE COMPANY
3A. APPROVED SALE. If the Required Sponsors approve a Sale of
the Company (an "APPROVED SALE"), each holder of Stockholder Shares will vote
for, consent to and will not object or otherwise impede consummation of the
Approved Sale.
3B. REQUIRED ACTIONS. If the Approved Sale is structured as (A)
a merger or consolidation, each holder of Stockholder Shares shall vote its
Stockholder Shares to approve such merger or consolidation, whether by written
consent or at a stockholders meeting (as requested by the Required Sponsors),
and waive all dissenter's rights, appraisal rights and similar rights in
connection with such merger or consolidation, (B) a sale of stock, each holder
of Stockholder Shares shall agree to sell, and shall sell, all of its
Stockholder Shares and rights to acquire Stockholder Shares on the terms and
conditions so approved, or (C) a sale of assets, each holder of Stockholder
Shares shall vote its Stockholder Shares to approve such sale and any subsequent
liquidation of the Company or other distribution of the proceeds therefrom,
whether by written consent or at a stockholders meeting (as requested by the
Required Sponsors). In furtherance of the foregoing, (I) each holder of
Stockholder Shares will take all necessary or desirable actions reasonably
requested by the Required Sponsors in connection with the consummation of the
Approved Sale of the Company and (II) each holder of Stockholder Shares will
make the same representations, warranties, indemnities and agreements as each
other holder (subject to SECTIONS 3B(i) and (ii) below), including without
limitation, voting to approve such transaction and executing the applicable
purchase agreement. In any Approved Sale, (i) each holder of Stockholder Shares
shall be obligated to make representations and warranties as to such
Stockholder's title to and ownership of Stockholder Shares, authorization,
execution and delivery of relevant documents by such Stockholder, enforceability
of relevant agreements against such Stockholder and other matters relating to
such Stockholder, to enter into covenants in respect of a Transfer of such
Stockholder's Stockholder Shares in connection with such Approved Sale and to
enter into indemnification obligations with respect to the foregoing, in each
case to the extent that each other Stockholder is similarly obligated; PROVIDED
that no Stockholder shall be obligated to enter into indemnification obligations
with respect to any of the foregoing to the extent relating to any other
Stockholder or such other Stockholder's Stockholder Shares, and (ii) in no event
shall any Stockholder be liable in respect of any indemnity obligations pursuant
to any Approved Sale in an aggregate amount in excess of the total consideration
payable to such Stockholder in such Approved Sale.
3C. CONDITIONS TO STOCKHOLDERS' OBLIGATIONS. The obligations of
the holders of Stockholder Shares with respect to an Approved Sale are subject
to the satisfaction of the following conditions: (i) upon the consummation of
the Approved Sale, each holder of Stockholder Shares will receive the same form
of consideration and the same portion of the aggregate consideration that such
holders of Stockholder Shares would have received if such aggregate
consideration had been distributed by the Company in complete liquidation
pursuant to
the rights and preferences set forth in the Certificate of Incorporation as in
effect immediately prior to such Approved Sale and in no event will such
consideration include equity securities that are not Publicly Traded Securities;
(ii) if any holder of a class of Stockholder Shares is given an option as to the
form and amount of consideration to be received, each holder of such class of
Stockholder Shares will be given the same option; and (iii) each holder of then
currently exercisable rights to acquire shares of a class of Stockholder Shares
will be given an opportunity to exercise such rights prior to the consummation
of the Approved Sale and participate in such sale as holders of such class of
Stockholder Shares.
3D. RULE 506 TRANSACTION. If the Company or the holders of the
Company's securities enter into any negotiation or transaction for which Rule
506 (or any similar rule then in effect) promulgated by the Securities Exchange
Commission may be available with respect to such negotiation or transaction
(including a merger, consolidation or other reorganization), the holders of
Stockholder Shares will, at the request of the Company, appoint a purchaser
representative (as such term is defined in Rule 501) reasonably acceptable to
the Company. If any holder of Stockholder Shares appoints a purchaser
representative designated by the Company, the Company will pay the fees of such
purchaser representative, but if any holder of Stockholder Shares declines to
appoint the purchaser representative designated by the Company such holder will
appoint another purchaser representative, and such holder will be responsible
for the fees of the purchaser representative so appointed.
3E. EXPENSES OF APPROVED SALE. Holders of Stockholder Shares
will bear their pro rata share (as if such expenses reduced the aggregate
proceeds available for distribution as contemplated by SECTION 3C(i) above) of
the costs of any sale of Stockholder Shares pursuant to an Approved Sale to the
extent such costs are incurred for the benefit of all holders of Stockholder
Shares and are not otherwise paid by the Company or the acquiring party. For
purposes of this SECTION 3E, costs incurred in exercising reasonable efforts to
take all necessary actions in connection with the consummation of an Approved
Sale in accordance with SECTION 3A shall be deemed to be for the benefit of all
holders of Stockholder Shares. Costs incurred by any holder of Stockholder
Shares on its own behalf will not be considered costs of the transaction
hereunder and will be the responsibility of such holder.
0X. XXXXXXXXXXX. The rights and obligations under this
SECTION 3 shall terminate upon the consummation of a Public Offering.
SECTION 4. LIMITED PREEMPTIVE RIGHTS
4A. OFFERING. If the Company issues or sells or authorizes the
issuance or sale of any of the Company's equity securities or any securities
containing options or rights to acquire the Company's equity securities to
either Sponsor or its Affiliates, any Quad-C Stockholders or its Affiliates or
any Coinvestor or its Affiliates (the "NEW SECURITIES"), other than any equity
securities to be issued to the Sponsors, the Quad-C Stockholders or the
Coinvestors subsequent to Closing pursuant to SECTION 2.5 of the
Recapitalization Agreement, the Company shall offer to each holder of
Stockholder Shares a percentage of such New Securities equal to the percentage
result of the quotient determined by dividing (A) the number of Stockholder
Shares held by such holder on a Fully Diluted Basis, by (B) the number of
outstanding Stockholder Shares on a Fully Diluted Basis. Each such holder of
Stockholder Shares shall be entitled to purchase such New
Securities at the most favorable price and on the most favorable terms as such
New Securities are to be sold or issued; PROVIDED that if a Person participating
in such purchase of New Securities is required in connection therewith also to
purchase other securities of the Company, the holders of Stockholder Shares
exercising their rights pursuant to this Section shall also be required to
purchase such other securities on the same economic terms and conditions as
those on which the offeree of the New Securities is required to purchase such
other securities (e.g., such holder shall be required to purchase the same types
and classes of other securities, in the same proportions relative to their
purchases of New Securities and at the same unit prices). For example, if the
Company offers to sell shares of Common Stock and requires that, as part of such
purchase, the offeree of such Common Stock also purchase a proportionate amount
of Preferred Stock, Stockholders exercising rights to purchase shares of Common
Stock pursuant to this SECTION 4A would be obligated also to purchase the
corresponding proportionate amount of Preferred Stock at the same price per
share of Preferred Stock. Each holder of Stockholder Shares participating in
such purchase shall also be obligated to execute agreements in the form
presented to such holder by the Company, so long as such agreements are
substantially similar to those to be executed by other purchasers of New
Securities (without taking into consideration any rights which do not entitle
such a purchaser to a higher economic return on the New Securities than the
economic return to which the other Stockholders participating in such
transaction will be entitled with respect to New Securities). The purchase price
for all New Securities offered to each holder of Stockholder Shares shall be
payable in cash by wire transfer of immediately available funds to an account
designated by the Company. Notwithstanding anything to the contrary contained
herein, the Company shall not have any obligation to issue equity securities or
to offer to issue any equity securities under this SECTION 4 to any holder of
Stockholder Shares who is not an "accredited investor" as such term is defined
in Regulation D under the Securities Act.
4B. ELECTION NOTICE. In order to exercise its purchase rights
hereunder, each holder of Stockholder Shares must deliver a written notice (an
"ELECTION NOTICE") to the Company describing its election hereunder. Such
Election Notice must be delivered to the Company during the 30-day period (the
"OFFERING PERIOD") following such holder's receipt of written notice from the
Company describing in reasonable detail the type, class and number of New
Securities being offered, the purchase price thereof, the payment terms and such
holder's percentage allotment.
4C. EXPIRATION OF OFFERING PERIOD. Upon the expiration of the
Offering Period and during the180-day period immediately thereafter, the Company
shall be entitled to sell any New Securities which any holder of Stockholder
Shares has not elected to purchase, on terms and conditions no more favorable to
the offeree of such New Securities than those offered to holders of Stockholder
Shares pursuant to SECTION 4A. Any New Securities offered or sold by the Company
after such 180-day period must be reoffered to each holder of Stockholder Shares
pursuant to the terms of this SECTION 4.
4D. TERMINATION. The rights under this SECTION 4 shall
terminate upon consummation of a Public Offering or a Sale of the Company.
SECTION 5. PUBLIC OFFERING
In the event that the Board and the Required Sponsors approve an
initial Public Offering, the holders of Stockholder Shares will use reasonable
efforts to take all necessary or desirable actions in connection with the
consummation of such Public Offering. In the event that such Public Offering is
an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the existing capital structure of the Company will
adversely affect the marketability of the offering, each holder of Stockholder
Shares will consent to and vote for a recapitalization, reorganization and/or
exchange of the Stockholder Shares into securities that the managing
underwriters, the Board and the Required Sponsors find acceptable and will take
all other necessary or desirable actions in connection with the consummation of
the recapitalization, reorganization and/or exchange; PROVIDED that all holders
of any class of Stockholder Shares are treated similarly in proportion to their
holdings.
SECTION 6. LEGEND
Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
Transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN TRANSFER RESTRICTIONS PURSUANT TO AN INVESTOR
RIGHTS
AGREEMENT DATED AS OF JANUARY ___, 2001, AMONG THE ISSUER OF SUCH
SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS. A COPY OF SUCH INVESTOR
RIGHTS AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST TO THE COMPANY'S CHIEF FINANCIAL OFFICER."
The Company shall imprint such legend on certificates evidencing
Stockholder Shares outstanding prior to the date hereof. The legend set forth
above shall be promptly removed from the certificates evidencing any shares upon
termination of SECTION 2 hereof.
SECTION 7. TRANSFER
Prior to Transferring any Stockholder Shares (other than in a
Public Sale or in an Approved Sale) to any person or entity, the transferring
stockholder shall cause the prospective transferee to execute and deliver to the
Company and the other Stockholders a counterpart of this Agreement.
SECTION 8. BOARD OF DIRECTORS; VOTING
8A. COMPOSITION OF THE BOARD. From and after the
effectiveness of this Agreement and until the provisions of this SECTION 8 cease
to be effective, each Stockholder shall vote all of his Stockholder Shares and
any other voting securities of the Company over which such Stockholder has
voting control and shall take all other necessary or desirable actions within
his control (whether in the capacity as a stockholder, director, member of a
board committee or
officer of the Company or otherwise, and including, without limitation,
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), and the Company shall
take all necessary and desirable actions within its control (including, without
limitation, calling special board and stockholder meetings), so that:
(i) the authorized number of directors on the Company's board
of directors (the "BOARD") shall be established at eleven directors;
(ii) the following persons shall be elected to the Board:
(a) the Company's chief executive officer, who initially
shall be Xxxxx X. Xxxxxxx (the "CEO DIRECTOR");
(b) subject to SECTION 8A(xi) below, one person
designated by Quad-C Management, Inc. (the "QUAD-C
DIRECTOR"), who shall initially be Xxxxxxx X. Xxxxx;
(c) subject to SECTION 8A(xii) below, one person
designated by Norwest Equity Partners VII, L.P. (the
"NORWEST DIRECTOR"), who shall initially be Xxxxxxx
X. XxXxxxx;
(d) subject to SECTION 8A(ix) below, three persons
designated by Oaktree (collectively, the "OAKTREE
DIRECTORS", and each individually, an "OAKTREE
DIRECTOR"), who shall initially be Xxxxxx X. Xxxx
and Xxxxx X. Xxxxxx, and another person to be named
by Oaktree at such time as it shall determine (it
being understood that such directorship shall remain
vacant until a representative is designated by
Oaktree);
(e) subject to SECTION 8A(x) below, three persons
designated by BACI (collectively, the "BACI
DIRECTORS" and each a "BACI DIRECTOR") who shall
initially be Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx,
and another person to be named by BACI at such time
as it shall determine (it being understood that such
directorship shall remain vacant until a
representative is designated by BACI); and
(f) two persons designated jointly by Oaktree and BACI
(the "OTHER DIRECTORS"), who initially shall be
Xxxxxx XxXxx and Xxxx Xxxxxx.
(iii) the composition of any committee of the Board shall
include at least one Oaktree Director and one BACI Director;
(iv) the composition of the board of directors of each of the
Company's
subsidiaries (a "SUB BOARD") shall be the same as that of the Board;
(v) if the CEO Director ceases to be the chief executive
officer of the Company and its Subsidiaries, such person shall be removed as a
director of the Board and any Sub Board upon termination of such person's
employment;
(vi) the removal from the Board without cause of the Quad-C
Director, the Norwest Director, any Oaktree Director, any BACI Director or any
Other Director shall be only upon the written request of the person or persons
originally entitled to designate such director pursuant to SECTION 8A(ii) above;
(vii) in the event that any person designated as a director
hereunder for any reason ceases to serve as a member of the Board or a Sub Board
during such person's term of office, the resulting vacancy on the Board or the
Sub Board shall be filled by a representative designated by the person or
persons originally entitled to designate such director pursuant to SECTION
8A(ii) above;
(viii) if any party (other than Oaktree or BACI) fails to
designate a representative to fill a directorship pursuant to the terms of this
SECTION 8A, the election of a person to such directorship shall be accomplished
in accordance with the Company's bylaws and applicable law;
(ix) in the event that Oaktree and its Permitted Transferees
hold in the aggregate less than 50% of the shares of Common Stock held by such
Persons as of the date hereof (as such number is proportionately adjusted for
stock splits, stock dividends, combinations of shares and similar
recapitalization transactions), Oaktree shall be entitled to designate one
director under this SECTION 8; PROVIDED that the rights of Oaktree under this
SECTION 8 shall terminate at such time as the Oaktree and its Permitted
Transferees hold in the aggregate less than 10% of the shares of Common Stock
held by such Persons on the date hereof (as such number is proportionately
adjusted for stock splits, stock dividends, combinations of shares and similar
recapitalization transactions). Notwithstanding the foregoing, at any time
following the termination of Oaktree's right pursuant to the immediately
preceding sentence, so long as Oaktree or any of its Permitted Transferees owns
any Stockholder Shares, any employee, agent or legal representative of Oaktree
designated in writing and reasonably acceptable to the Company shall be entitled
to (i) attend meetings of the Board of the Company and participate in
discussions of the Board, but will not be allowed to vote on any matter
submitted to the Board for vote, and (ii) discuss the business operations,
properties and financial and other conditions of the Company with any authorized
officer, employee, agent, representative, director or independent accountant of
the Company and, upon reasonable notice to the Company, any authorized officer,
agent, representative, director or independent accountant of any subsidiary of
the Company;
(x) in the event that BACI and its Permitted Transferees hold
in the aggregate less than 50% of the shares of Common Stock held by such
Persons as of the date hereof (as such number is proportionately adjusted for
stock splits, stock dividends, combinations of shares and similar
recapitalization transactions), BACI shall be entitled to designate one director
under this SECTION 8; PROVIDED THAT the rights of BACI under this SECTION 8
shall terminate at such time as
the BACI and its Permitted Transferees hold in the aggregate less than 10% of
the shares of Common Stock held by such Persons on the date hereof (as such
number is proportionately adjusted for stock splits, stock dividends,
combinations of shares and similar recapitalization transactions);
(xi) the rights of Quad-C Management, Inc. under this SECTION
8 shall terminate at such time as the Quad-C Stockholders and its Permitted
Transferees hold in the aggregate less than 50% of the shares of Common Stock
held by such Persons on the date hereof (as such number is proportionately
adjusted for stock splits, stock dividends, combinations of shares and similar
recapitalization transactions), PROVIDED HOWEVER, if the Quad-C Stockholders and
their Permitted Transferees Transfer 50% or more of the Common Stock held by
such Persons on the date hereof pro rata with any Sponsor pursuant to SECTION 2C
and or SECTION 10 hereof, the rights of the Quad-C Stockholders under this
SECTION 8 shall terminate at such time as the Quad-C Stockholders and their
Permitted Transferees hold in the aggregate less than 25% of the shares of
Common Stock held by such Persons on the date hereof (as such number is
proportionately adjusted for stock splits, stock dividends, combinations of
shares and similar recapitalization transactions); and
(xii) the rights of Norwest Equity Partners VII, L.P. under
this SECTION 8 shall terminate at such time as Norwest Equity Partners VII, L.P.
and its Permitted Transferees hold in the aggregate less than 50% of the shares
of Common Stock held by such Persons on the date hereof (as such number is
proportionately adjusted for stock splits, stock dividends, combinations of
shares and similar recapitalization transactions).
8B. BOARD MEETING EXPENSES. The Company shall pay all
reasonable out-of-pocket expenses incurred by each director in connection with
attending regular and special meetings of the Board, any Sub Board and any
committee thereof.
8C. OTHER VOTING MATTERS. Each Stockholder hereby agrees that
such Stockholder will vote, or cause to be voted, all voting Stockholder Shares
over which such Stockholder has the power to vote or direct the voting, either
in person or by proxy, whether at a stockholders meeting, or by written consent,
in the manner in which the Required Sponsors directs in connection with the
approval of any amendment or amendments to the Company's certificate of
incorporation or bylaws, the merger, share exchange, combination or
consolidation of the Company with any other Independent Third Party, the sale,
lease or exchange of all or substantially all of the property and assets of the
Company and its Subsidiaries on a consolidated basis to an Independent Third
Party, and the reorganization, recapitalization, liquidation, dissolution or
winding-up of any of the Company and its Subsidiaries; PROVIDED, however, that
no such action shall (a) be inconsistent with the terms of this Agreement, or
(b) have a material adverse effect on any Stockholder's rights or interests in
respect of any Stockholder Shares that would be borne disproportionately by such
Stockholder relative to the effect on the rights or interests of any other
Stockholder in respect of holdings of Stockholder Shares of the same class.
8D. IRREVOCABLE PROXY. In order to secure the obligations of
each Stockholder (other than the Sponsors and their Affiliates, and the Quad-C
Stockholders and their Affiliates) who now or hereafter holds any voting
securities to vote such Person's Stockholder Shares in
accordance with the provisions of SECTION 3 and this SECTION 8, each Stockholder
hereby appoints each of Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx as his or its true
and lawful proxy and attorney-in-fact, with full power of substitution, to vote
all of his Stockholder Shares for an Approved Sale and all such other matters as
expressly provided for in SECTION 3A and SECTION 3B and for the election and/or
removal of directors and all such other matters as expressly provided for in
SECTION 8A and SECTION 8C. Either Xxxxx X. Xxxxxx or Xxxxx X. Xxxxxxx may
exercise the irrevocable proxy granted to it hereunder at any time any such
Stockholder fails to comply with the provisions of this Agreement. The proxies
and powers granted by each such Stockholder pursuant to this SECTION 8D are
coupled with an interest and are given to secure the performance of such
Stockholder's obligations to the Required Sponsors under this Agreement. Such
proxies and powers shall be irrevocable until termination of this SECTION 8 and
shall survive the death, incompetency, disability, bankruptcy or dissolution of
such Stockholder and the subsequent holders of his or its Securities. No
Stockholder shall grant any proxy or become party to any voting trust or other
agreement which is inconsistent with, conflicts with or violates any provision
of this Agreement. In the event that the rights granted under this SECTION 8D
are exercised, the Company will give notice thereof to each Stockholder and
copies of all agreements executed in connection therewith.
PROVISIONS RELATING TO REGISTRATION OF STOCKHOLDER SHARES
SECTION 9. DEMAND REGISTRATIONS
9A. REQUESTS FOR REGISTRATION. At any time (i) the holders of
a majority of the Oaktree Registrable Securities may request, and (ii) the
holders of a majority of the BACI Registrable Securities may request,
registration under the Securities Act (a "DEMAND REGISTRATION") of all or any
portion of its Registrable Securities on Form S-1 or any similar long-form
registration ("LONG-FORM REGISTRATIONS"), or, if available, on Form S-2 or S-3
or any similar short-form registration ("SHORT-FORM REGISTRATIONS"). In
addition, at any time after the Company's initial Public Offering, the holders
of a majority of the Quad-C Registrable Securities may request, if available, a
Demand Registration that is a Short Form Registration. Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered and the anticipated per share price range for such
offering. Within ten days after receipt of any such request, the Company will
give written notice of such requested registration to all other holders of
Registrable Securities and, subject to SECTION 9D below, will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice.
9B. LONG-FORM REGISTRATIONS. Each of the holders of a
majority of the Oaktree Registrable Securities and holders of a majority of the
BACI Registrable Securities will be entitled to request an unlimited number of
Long-Form Registrations in which the Company will pay all Registration Expenses.
9C. SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations
provided pursuant to SECTION 9B, each of (i) the holders of a majority of the
Oaktree Registrable Securities and (ii) holders of a majority of the BACI
Registrable Securities will be entitled to request unlimited Short-Form
Registrations in which the Company will pay all Registration Expenses. In
addition, the holders of a majority of the Quad-C Registrable Securities may
request one Short-Form Registration in which the Company will pay all
Registration Expenses. Demand Registrations will be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. After the
Company has become subject to the reporting requirements of the Securities
Exchange Act, the Company will use its best efforts to make Short-Form
Registrations available for the sale of Registrable Securities. In the case of
the Short-Form Registration requested by the holders of Quad-C Registrable
Securities, a registration shall not count as the permitted Short-Form
Registrations until it has become effective (unless such Short-Form Registration
has not become effective due solely to the fault of the holders requesting such
registration) and unless the holders of Quad-C Registrable Securities are able
to register and sell at least 90% of the Registrable Securities requested to be
included in such registration (unless such Short-Form Registration has not
become effective due solely to the fault of the holders requesting such
registration), and in any event the Company shall pay all Registration Expenses
in connection with any such registration whether or not it has become effective
and whether or not such registration has counted as the permitted Short-Form
Registration (unless such Short-Form Registration has not become effective due
solely to the fault of the holders requesting such registration).
9D. PRIORITY ON DEMAND REGISTRATIONS. The Company will not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of the
Registrable Securities initially requesting such Demand Registration (the
"INITIATING HOLDERS"). If a Demand Registration is an underwritten offering and
the managing underwriters advise the Company in writing that in their opinion
the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold in an
orderly manner in such offering within a price range reasonably acceptable to
the Initiating Holders, the Company will include in such registration, if any,
(i) first, the Registrable Securities requested to be included in such
registration by the holders thereof, pro rata among such holders on the basis of
the number of shares of Registrable Securities owned by each such holder, and
(ii) second, the other securities requested to be included, in each of (i) and
(ii) which securities in the opinion of such underwriters can be sold in an
orderly manner within the price range of such offering.
9E. RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will
not be obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration. The Company may postpone for
up to six months the filing or the effectiveness of a registration statement for
a Demand Registration if the Company's board of directors determines that such
Demand Registration would reasonably be expected to have an adverse effect on
any proposal or plan by the Company or any of its Subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or similar transaction; PROVIDED that, in
such event, the holders of Registrable Securities initially requesting such
Demand Registration will be entitled to withdraw such request.
9F. SELECTION OF UNDERWRITERS. The Required Sponsors will
have the right to select the investment banker(s) and manager(s) to administer
the offering, subject to the Company's approval which will not be unreasonably
withheld.
9G. OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company will not grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without the
prior written consent of the holders of a majority of the Oaktree Registrable
Securities and the holders of a majority of the BACI Registrable Securities.
9H. DEMAND REGISTRATION EXPENSES. The Registration Expenses
in connection with any Demand Registration will be paid by the Company,
including the reimbursement of the holders of Registrable Securities included in
such registration for the reasonable fees and disbursements of one counsel
chosen by the holders of a majority of the Registrable Securities included in
such registration.
SECTION 10. PIGGYBACK REGISTRATIONS
10A. RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than (i) in
connection with the Company's initial public offering of Common Stock (unless
other Registrable Securities are included in such offering), (ii) pursuant to a
Demand Registration (but subject to the rights of holders of Registrable
Securities to participate in Demand Registrations pursuant to SECTION 9) or
(iii) pursuant to a registration on Form S-4 or S-8 (or any successor or similar
forms) and the registration form to be used may be used for the registration of
Registrable Securities (a "PIGGYBACK REGISTRATION"), the Company will give
prompt written notice to all holders of Registrable Securities of its intention
to effect such a registration and will use its reasonable best efforts to
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
10B. PIGGYBACK EXPENSES. The Registration Expenses of the
holders of Registrable Securities will be paid by the Company in all Piggyback
Registrations.
10C. PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering in an orderly manner
within a price range acceptable to the Company, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares owned by each such holder, and (iii) third, other
securities requested to be included in such registration.
10D. OTHER REGISTRATIONS. If the Company has previously filed
a registration
statement with respect to Registrable Securities pursuant to SECTION 9 or
pursuant to this SECTION 10, and if such previous registration has not been
withdrawn or abandoned, the Company will not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-4 or S-8 or any successor form), whether on its own behalf
or at the request of any holder or holders of such securities, until a period of
at least six months has elapsed from the effective date of such previous
registration.
10E. POSTPONEMENT OR WITHDRAWAL. Notwithstanding the
foregoing, the Company may postpone or withdraw any registration statement
referred to in this SECTION 10 without incurring any liability to holders of
Registrable Securities.
SECTION 11. HOLDBACK AGREEMENTS
11A. AGREEMENT OF HOLDERS OF REGISTRABLE SECURITIES. Each
holder of Registrable Securities will not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities, options or rights convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
11B. COMPANY AGREEMENT. The Company will (i) not effect any
public sale or distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and during the 180-day period beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-4 or S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) cause each
holder of shares of Common Stock, or any securities convertible into or
exchangeable or exercisable for shares of Common Stock, purchased from the
Company at any time after the date of this Agreement (other than in a registered
public offering) to agree not to effect any public sale or distribution
(including sales pursuant to Rule 144) of any such securities during such period
(except as part of such underwritten registration, if otherwise permitted),
unless the underwriters managing the registered public offering otherwise agree.
SECTION 12. REGISTRATION PROCEDURES
Whenever the holders of Registrable Securities have requested
that any Registrable Securities be registered pursuant to this Agreement, the
Company will use its reasonable best efforts to effect the registration and the
sale of such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto the Company will as expeditiously as
reasonably possible:
(i) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and thereafter use its best efforts to cause such registration statement to
become effective (PROVIDED that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will furnish to
the counsel selected by the holders of a majority of the Registrable Securities
initiating such registration statement copies of all such documents proposed to
be filed, which documents will be subject to review of such counsel);
(ii) notify each holder of Registrable Securities of the
effectiveness of each Registration Statement filed hereunder and prepare and
file with the Securities and Exchange 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 a period
of either (i) not less than six months (subject to extension pursuant to SECTION
15) or, if such registration statement relates to an underwritten offering, such
longer period as in the opinion of counsel for the underwriters a prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer or (ii) such shorter period as will
terminate when all of the securities covered by such registration statement have
been disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration statement (but in any
event not before the expiration of any longer period required under the
Securities Act), and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement; PROVIDED that the Company
shall not be obligated to maintain the effectiveness of any registration
statement for a period of more than twenty-four months from the date on which
the such registration statement initially becomes effective.
(iii) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (PROVIDED that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(v) notify each seller of such 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 discovery of 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 any fact necessary to make the statements therein not
misleading in the light of the circumstances under which they were made, and, at
the request of any such seller, the Company will prepare and furnish to such
seller a reasonable number of copies of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made;
(vi) cause all such Registrable Securities to be listed on
each securities exchange or market on which similar securities issued by the
Company are then listed;
(vii) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(viii) enter into such customary agreements (including
underwriting agreements in customary form) as may be requested by the
underwriters and take all such other actions as the holders of a majority of the
Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a stock split or a
combination of shares);
(ix) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(x) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of SECTION 11(a) of the Securities Act and Rule 158 thereunder;
(xi) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(xii) obtain one or more comfort letters, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), signed by the Company's independent public accountants
in customary form and covering such matters of the type customarily covered
by comfort letters as the holders of a majority of the Registrable Securities
being sold reasonably request (PROVIDED that such Registrable Securities
constitute at least 10% of the securities covered by such registration
statement); and
(xiii) as required by the Securities Act or by an underwriter,
provide a legal opinion of the Company's outside counsel, dated the effective
date of such registration statement (and, if such registration includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
SECTION 13. REGISTRATION EXPENSES
13A. COMPANY EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions)
and other Persons retained by the Company (all such expenses being herein called
"REGISTRATION EXPENSES"), will be borne as provided in this Agreement, except
that the Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
13B. REIMBURSEMENT. In connection with each Demand
Registration and each Piggyback Registration, the Company will reimburse the
holders of Registrable Securities covered by such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the Registrable Securities included in such registration, and in
addition, in connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of each
additional counsel retained by any holder of Registrable Securities for the
purpose of rendering any legal opinion required by the Company or the managing
underwriter(s) to be rendered on behalf of such holder in connection with any
underwritten Demand Registration or Piggyback Registration.
SECTION 14. INDEMNIFICATION
14A. INDEMNIFICATION OBLIGATION OF THE COMPANY. The Company
agrees to indemnify and hold harmless, to the extent permitted by law, each
holder of Registrable Securities, its officers and directors and each Person who
controls such holder (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses caused by (i) any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or, (ii) any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except in so far as the
same are caused by or contained in any information furnished in writing to the
Company by or on behalf of such holder expressly for use therein or by such
holder's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
holder with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
14B. INDEMNIFICATION OF THE COMPANY. In connection with any
registration statement in which a holder of Registrable Securities is
participating, each such holder will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, will indemnify and hold harmless the Company, its directors
and officers and each other Person who controls the Company (within the meaning
of the Securities Act) against any losses, claims, damages, liabilities and
expenses caused by (i) any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or (ii) any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by or on behalf of such holder; PROVIDED that the obligation to
indemnify will be individual to each holder and will be limited to the net
amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
14C. INDEMNIFICATION PROCEDURES. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(PROVIDED that the failure to give prompt notice shall not impair any Person's
right to indemnification hereunder to the extent such failure has not adversely
affected the indemnifying party) and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
14D. OTHER INDEMNIFICATION PROVISIONS. The indemnification
provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party or
any officer, director or controlling Person of such indemnified party and will
survive the transfer of securities. The Company and any other indemnifying party
with respect to the matters set forth in SECTIONS 9 through 14 of this Agreement
also agree to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
SECTION 15. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s), PROVIDED that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested the Company to include in any
registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements. Each Person that is
participating in any registration hereunder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
SECTION 12(v) above, such Person will forthwith discontinue the disposition of
its Registrable Securities pursuant to the registration statement until such
Person's receipt of the copies of a supplemented or amended prospectus as
contemplated by such SECTION 12(v). In the event the Company shall give any such
notice, the applicable time period mentioned in SECTION 12(ii) during which a
Registration Statement is to remain effective shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to this SECTION 15 to and including the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
SECTION 12(v).
SECTION 16. RESTRICTIONS AND FINANCIAL REPORTING
16A. REQUIRED SPONSORS. Without the prior written consent of
the Required Sponsors, the Company shall not:
(i) directly or indirectly declare or pay any dividends or
make any distributions upon any of its capital stock or other equity securities
other than the Preferred Stock pursuant to the terms of the Certificate of
Incorporation, except for dividends payable in shares of Common Stock issued
upon the outstanding shares of Common Stock;
(ii) directly or indirectly redeem, purchase or otherwise
acquire, or permit any Subsidiary to redeem, purchase or otherwise acquire, any
of the Company's or any Subsidiary's capital stock or other equity securities
(including, without limitation, warrants, options and other rights to acquire
such capital stock or other equity securities) other than the Preferred Stock
pursuant to the terms of the Certificate of Incorporation, except for
repurchases of Common Stock from employees of the Company and its Subsidiaries
upon termination of employment pursuant to arrangements approved by the
Company's board of directors;
(iii) authorize, issue or enter into any agreement providing
for the issuance (contingent or otherwise) of, (a) any notes or debt securities
containing equity features (including, without limitation, any notes or debt
securities convertible into or exchangeable for capital stock or other equity
securities, issued in connection with the issuance of capital stock or other
equity securities or containing profit participation features) or (b) any
capital stock or other equity securities (or any securities convertible into or
exchangeable for any capital stock or other equity securities)
(iv) make, or permit any Subsidiary to make, any loans or
advances to, guarantees for the benefit of, or investments in, any Person (other
than a wholly-owned subsidiary), except for (a) reasonable advances to employees
in the ordinary course of business, and (b) investments having a stated maturity
no greater than one year from the date the Company makes such investment in (1)
obligations of the United States government or any agency thereof or obligations
guaranteed by the United States government, (2) certificates of deposit of
commercial banks having combined capital and surplus of at least $50 million or
(3) commercial paper with a rating of at least "Prime-1" by Xxxxx'x Investors
Service, Inc.;
(v) merge or consolidate with any Person or permit any
Subsidiary to merge or consolidate with any Person (other than a wholly-owned
subsidiary);
(vi) sell, lease or otherwise dispose of, or permit any
Subsidiary to sell, lease or otherwise dispose of, more than 10% of the
consolidated assets of the Company and its Subsidiaries (computed on the basis
of book value, determined in accordance with generally accepted accounting
principles consistently applied, or fair market value, determined by the
Company's board of directors in its reasonable good faith judgment) in any
transaction or series of related transactions (other than sales in the ordinary
course of business);
(vii) liquidate, dissolve or effect a recapitalization or
reorganization in any form of transaction (including, without limitation, any
reorganization into a limited liability company, a partnership or any other
non-corporate entity which is treated as a partnership for federal income tax
purposes);
(viii) acquire, or permit any Subsidiary to acquire, any
interest in any company or business (whether by a purchase of assets, purchase
of stock, merger or otherwise), or enter into any joint venture;
(ix) enter into, or permit any Subsidiary to enter into, the
ownership, active management or operation of any business other than the
manufacture and sale of commercial
floorcoverings;
(x) become subject to, or permit any of its Subsidiaries to
become subject to, (including, without limitation, by way of amendment to or
modification of) any agreement or instrument which by its terms would (under any
circumstances) restrict the Company's right to perform the provisions of this
Agreement, the Certificate of Incorporation or the Company's bylaws (including,
without limitation, provisions relating to the declaration and payment of
dividends on and the making of redemptions of the Preferred Stock;
(xi) make any amendment to the Certificate of Incorporation or
the Company's bylaws;
(xii) enter into, amend, modify or supplement, or permit any
Subsidiary to enter into, amend, modify or supplement, any agreement,
transaction, commitment or arrangement with any of its or any Subsidiary's
officers, directors, employees or Affiliates or with any individual related by
blood, marriage or adoption to any such individual or with any entity in which
any such Person or individual owns a beneficial interest, except for customary
employment arrangements and benefit programs on reasonable terms and except as
otherwise expressly contemplated by this Agreement;
(xiii) create, incur, assume or suffer to exist, or permit any
Subsidiary to create, incur, assume or suffer to exist, indebtedness exceeding
an aggregate principal amount of $_______ outstanding at any time on a
consolidated basis;
(xiv) create, incur, assume or suffer to exist, or permit any
Subsidiary to create, incur, assume or suffer to exist, any liens or
encumbrances;
(xv) make any capital expenditures (including, without
limitation, payments with respect to capitalized leases, as determined in
accordance with generally accepted accounting principles consistently applied)
exceeding $_______ in the aggregate on a consolidated basis during any twelve
month period; or
(xvi) increase the authorized size of its board of directors
above eleven members.
16B. QUAD-C STOCKHOLDERS; COINVESTORS. Without the prior
written consent of the holders of a majority of the Stockholder Shares held by
the Quad-C Stockholders and the holders of a majority of the Stockholder Shares
held by the Coinvestors, the Company shall not enter into, amend, modify or
supplement any agreement, transaction, commitment or arrangement with either
Sponsor or its respective Affiliates, unless the Quad-C Stockholders and the
Coinvestors are offered the opportunity to participate in such transaction pro
rata with the Sponsors, other than (i) sales of carpeting, (ii) financings by
the Bank of America, N.A. and its Affiliates in the ordinary course of business,
(iii) the payment to the Sponsors of management
and consulting fees of up to $500,000 per annum in the aggregate, and (iv) the
reimbursement by the Company of the Sponsors' fees and expenses related to the
consummation of the transactions contemplated by the Recapitalization Agreement.
16C. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company
shall deliver to each Sponsor, each Quad-C Stockholder and each Coinvestor (so
long as such Person holds any Stockholder Shares):
(i) as soon as available but in any event within 45 days
after the end of each monthly accounting period in each fiscal year, unaudited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such monthly period and for the period from the
beginning of the fiscal year to the end of such month, and unaudited
consolidating and consolidated balance sheets of the Company and its
Subsidiaries as of the end of such monthly period, and all such statements shall
be prepared in accordance with generally accepted accounting principles,
consistently applied, subject to the absence of footnote disclosures and to
normal year-end adjustments for recurring accruals;
(ii) within 90 days after the end of each fiscal year,
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such fiscal year, and consolidating and
consolidated balance sheets of the Company and its Subsidiaries as of the end of
such fiscal year, all prepared in accordance with generally accepted accounting
principles, consistently applied, and accompanied by, with respect to the
consolidated portions of such statements, an opinion of an independent
accounting firm of recognized national standing;
(iii) with reasonable promptness, notice of (i) any default
under any agreement with respect to material indebtedness for borrowed money and
(ii) any action, suit or proceeding by or before any governmental
instrumentality or agency which, if adversely determined, would have a material
adverse effect on the business or operations the Company and its Subsidiaries,
taken as a whole; and
(iv) with reasonable promptness, such other information and
financial data concerning the Company and its Subsidiaries as any Person
entitled to receive information under this SECTION 16C may reasonably request.
SECTION 17. DEFINITIONS
"AFFILIATE" of a Stockholder means any other person, entity or
investment fund controlling, controlled by or under common control with the
Stockholder and, in the case of a Stockholder which is a partnership, any
partner of the Stockholder, and in the case of a Stockholder which is a limited
liability company, any member of the Stockholder.
"AGREEMENT" has the meaning set forth in the Preamble.
"APPROVED SALE" has the meaning set forth in SECTION 3A.
"BACI REGISTRABLE SECURITIES" means (i) any shares of Common
Stock issued to
BACI pursuant to the Recapitalization Agreement, (ii) any shares of Common Stock
otherwise acquired by BACI, (iii) any shares of Common Stock issued or issuable
upon conversion of other Stockholder Shares held by BACI, and (iv) any equity
securities issued or issuable directly or indirectly with respect to the
securities referred to in any of clauses (i) through (iii) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular shares constituting BACI Registrable Securities, such shares will
cease to be BACI Registrable Securities when they have been (x) effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them, or (y) sold to the public through a broker
dealer or market maker pursuant to Rule 144 (or any similar provision then in
force) under the Securities Act. For purposes of this Agreement, a Person will
be deemed to be a holder of BACI Registrable Securities whenever such Person has
the right to acquire directly or indirectly such BACI Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
"CERTIFICATE OF INCORPORATION" means the Company's certificate of
incorporation in effect at the time as of which any determination is being made.
"CLOSING" has the meaning set forth in the Recapitalization
Agreement.
"COINVESTORS" shall have the meaning set forth in the Preamble.
"COMMON STOCK" means the Company's Common Stock, no par value.
"COMPANY" has the meaning set forth in the Preamble.
"DEMAND REGISTRATION" has the meaning set forth in SECTION 9A.
"ELECTION NOTICE" has the meaning set forth in SECTION 4B.
"ELECTION PERIOD" has the meaning set forth in SECTION 2B.
"EXECUTIVES" has the meaning set forth in the Preamble.
"EXEMPT TRANSFER" has the meaning set forth in SECTION 2D.
"FAMILY GROUP" with respect to any Stockholder, means such
Stockholder's spouse, siblings and descendants (whether or not adopted) and any
trust, family limited partnership or limited liability company that is and
remains solely for the benefit of such Stockholder and/or such Stockholder's
spouse, siblings and/or descendants.
"FULLY DILUTED BASIS" means, without duplication, (i) all shares
of Common Stock outstanding at the time of determination plus (ii) all shares of
Common Stock issuable directly or indirectly upon conversion of all outstanding
convertible securities or the exercise or exchange of all outstanding option,
warrant or similar right, whether or not such convertible security, right or
option, warrant or similar right is then convertible, exercisable or
exchangeable.
"INDEPENDENT THIRD PARTY" means any Person who, immediately prior
to the contemplated transaction, does not own in excess of 5% of the Company's
Common Stock on a Fully Diluted Basis (a "5% OWNER"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other Persons.
"LIQUIDATION VALUE" means, with respect to each share of
Preferred Stock, $1.00 plus the aggregate amount of accrued and unpaid dividends
thereon.
"LONG-FORM REGISTRATIONS" has the meaning set forth in
SECTION 9A.
"NEW SECURITIES" has the meaning set forth in SECTION 4D.
"NEW STOCKHOLDERS" has the meaning set forth in the Preamble.
"NORWEST DIRECTOR" shall have the meaning set forth in
SECTION 8A.
"OAKTREE REGISTRABLE SECURITIES" means (i) any shares of Common
Stock issued to Oaktree pursuant to the Recapitalization Agreement, (ii) any
shares of Common Stock otherwise acquired by Oaktree, (iii) any shares of Common
Stock issued or issuable upon conversion of other Stockholder Shares held by
Oaktree, and (iv) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in any of clauses (i)
through (iii) above by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular shares constituting Oaktree Registrable
Securities, such shares will cease to be Oaktree Registrable Securities when
they have been (x) effectively registered under the Securities Act and disposed
of in accordance with the registration statement covering them, or (y) sold to
the public through a broker dealer or market maker pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act. For purposes of this
Agreement, a Person will be deemed to be a holder of Oaktree Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Oaktree Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"OFFERING PERIOD" has the meaning set forth in SECTION 4B.
"OTHER REGISTRABLE SECURITIES" means (i) any shares of Common
Stock issued to the Stockholders (other than Oaktree, BACI and the Quad-C
Stockholders), and (ii) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in clause (i) by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular shares
constituting Other Registrable Securities, such shares will cease to be Other
Registrable Securities when they have been (x) effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering them, or (y) sold to the public through a broker dealer or market maker
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act. For purposes of this Agreement, a Person will be deemed to be a
holder of Other Registrable Securities whenever such Person has the right to
acquire directly or indirectly such Other Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
"OTHER STOCKHOLDERS" has the meaning set forth in SECTION 2B.
"OUTSIDE DIRECTORS" shall have the meaning set forth in
SECTION 8A.
"PARTICIPATING SHARES" has the meaning set forth in SECTION 2C.
"PARTICIPATING STOCKHOLDERS" has the meaning set forth in
SECTION 2C.
"PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PIGGYBACK REGISTRATION" has the meaning set forth in
SECTION 10A.
"PREFERRED STOCK" means the Company's Class A Preferred Stock, no
par value per share and the Company's Class B Preferred Stock, no par value per
share.
"PUBLIC OFFERING" means a public offering and sale of the
Company's equity securities pursuant to an effective registration statement on
Form S-1 (or any successor form) under the Securities Act.
"PUBLIC SALE" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act.
"PUBLICLY TRADED SECURITIES" means securities registered under
the Securities Act and the Securities Exchange Act of 1934, as amended, or, in
the case of an Approved Sale, the purchaser thereunder has agreed to register
within 180 days of the closing of such Approved Sale, and which are either
listed on a domestic securities exchange or quoted on a domestic
over-the-counter market.
"QUAD-C DIRECTOR" has the meaning set forth in SECTION 8A.
"QUAD-C REGISTRABLE SECURITIES" means (i) any shares of Common
Stock retained by the Quad-C Stockholders pursuant to the Recapitalization
Agreement, (ii) any shares of
Common Stock otherwise acquired by the Quad-C Stockholders, (iii) any shares of
Common Stock issued or issuable upon conversion of other Stockholder Shares held
by the Quad-C Stockholders, and (iv) any equity securities issued or issuable
directly or indirectly with respect to the securities referred to in any of
clauses (i) through (iii) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular shares constituting Quad-C
Registrable Securities, such shares will cease to be Quad-C Registrable
Securities when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
or (y) sold to the public through a broker dealer or market maker pursuant to
Rule 144 (or any similar provision then in force) under the Securities Act. For
purposes of this Agreement, a Person will be deemed to be a holder of Quad-C
Registrable Securities whenever such Person has the right to acquire directly or
indirectly such Quad-C Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"QUAD-C STOCKHOLDERS" means each of Quad-C Partners II, L.P.,
Quad-C Partners III, L.P., Quad-C Partners, IV, L.P., QCP Investors, LLC and QCP
Investors II, LLC.
"RECAPITALIZATION AGREEMENT" has the meaning set forth in the
Preamble.
"REGISTRABLE SECURITIES" means, collectively, the Oaktree
Registrable Securities, the BACI Registrable Securities, the Quad-C Registrable
Securities and the Other Registrable Securities. For purposes of this Agreement,
a Person will be deemed to be a holder of Registrable Securities whenever such
Person has the right to acquire directly or indirectly such Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected.
"REGISTRATION EXPENSES" has the meaning set forth in SECTION 13A.
"REQUIRED SPONSORS" at any time means the holders of 662/3% of
the Sponsor Shares.
"ROLLOVER PARTICIPANTS" has the meaning set forth in the
Preamble.
"SALE NOTICE" has the meaning set forth in SECTION 2C.
"SALE OF THE COMPANY" means the sale of the Company to an
Independent Third Party or group of Independent Third Parties pursuant to which
such party or parties acquire (i) capital stock of the Company possessing the
voting power to elect a majority of the Board (whether by merger, consolidation
or sale or transfer of the Company's capital stock) or (ii) all or substantially
all of the Company's assets determined on a consolidated basis.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
"SECURITIES AND EXCHANGE COMMISSION" includes any governmental
body or agency succeeding to the functions thereof.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, or any similar federal law then in force.
"SHORT-FORM REGISTRATIONS" has the meaning set forth in
SECTION 9A.
"SPONSOR" has the meaning set forth in the Preamble.
"SPONSOR SHARES" means (i) any Stockholder Shares acquired by the
Sponsors pursuant to the Recapitalization Agreement, (ii) any Stockholder Shares
otherwise held from time to time by the Sponsors and (iii) any securities issued
or issuable directly or indirectly with respect to the Stockholder Shares
referred to in clause (i) or (ii) by way of dividend or split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization, provided that the Sponsors Shares shall continue to be the
Sponsors Shares only so long as such shares are owned by a Sponsor or any
Affiliate of a Sponsor.
"STOCKHOLDER SHARES" means (i) any Common Stock or Preferred
Stock held by any Stockholder (including any such securities of the Company held
by any Person having control over or in control of such Stockholder) as of the
Closing or at any time thereafter, and (ii) any capital stock or other equity
securities issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) above by way of dividend or split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular shares constituting Stockholder
Shares, such shares shall cease to be Stockholder Shares when they have been (x)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them or (y) sold to the public through
a broker, dealer or market maker pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act.
"STOCKHOLDER" or "STOCKHOLDERS" has the meaning set forth in the
Preamble.
"TRANSFER" has the meaning set forth in SECTION 2A.
"TRANSFER SHARES" has the meaning set forth in SECTION 2C.
"TRANSFERRING SPONSOR" has the meaning set forth in SECTION 2C.
Unless otherwise stated, other capitalized terms contained herein
have the meanings set forth in the Recapitalization Agreement.
SECTION 18. MISCELLANEOUS
18A. TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or
attempted Transfer of any Stockholder Shares in violation of any provision of
this Agreement shall be void, and the Company shall not record such Transfer on
its books or treat any purported transferee of such Stockholder Shares as the
owner of such shares for any purpose.
18B. AMENDMENT AND WAIVER. Except as otherwise provided
herein, any modification, amendment or waiver of any provision of this Agreement
shall be effective against the Company and the Stockholders if, and only if,
such modification, amendment or waiver is approved in writing by the Company and
the Required Sponsors; PROVIDED that in the event that such amendment or waiver
by its terms treats any holder or group of holders of the same class of
Stockholder Shares adversely relative to other holders of such class of
Stockholder Shares (which shall include, without limitation, the elimination of
a right granted to one or more holders of a class of Stockholder Shares which
right was not granted to all holders of such class under this Agreement), then
such amendment or waiver will require the consent of a majority of Stockholder
Shares of such class held by such holder or group of holders of Stockholder
Shares so adversely treated.
18C. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
18D. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this document, the Recapitalization Agreement and the documents
referenced therein embody the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
18E. NO INCONSISTENT AGREEMENTS. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
18F. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
18G. SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Company and its successors and assigns and the Stockholders and any
subsequent holders of Stockholder Shares and the respective successors and
assigns of each of them, so long as they hold Stockholder
Shares.
18H. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
18I. REMEDIES. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that the Company and any Stockholder shall have the right to
injunctive relief, in addition to all of its rights and remedies at law or in
equity, to enforce the provisions of this Agreement. Nothing contained in this
Agreement shall be construed to confer upon any Person who is not a signatory
hereto any rights or benefits, as a third party beneficiary or otherwise.
18J. NOTICES. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered, or received by certified
mail, return receipt requested, or sent by reputable overnight courier service
(charges prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated in the schedules attached hereto and to any
subsequent holder of Stockholder Shares at such address as indicated by the
Company's records or at such address or to the attention of such other person as
the recipient party has specified by prior written notice to the sending party.
Notices will be deemed to have been given hereunder (i) when delivered
personally to the recipient, (ii) one business day (or in the case of Abu Dhabi
Investment Authority ("Adia"), three days) after being sent to the recipient by
reputable overnight courier service (charges prepaid), (iii) upon
machine-generated acknowledgment of receipt after transmittal by facsimile if so
acknowledged to have been received before 5:00 p.m. on a business day at the
location of receipt and otherwise on the next following business day, PROVIDED
that such notice, demand or other communication is also deposited within 24
hours thereafter with a reputable overnight courier service (charges prepaid)
for delivery to the same Person, or (iv) five days (or in the case of Adia, ten
days) after being mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. The Company's address is:
CAF Holdings, Inc.
c/x Xxxxxxx & Xxxxxx Floorcoverings, Inc.
000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
WITH A COPY TO
(which shall not constitute notice to the
Company)
OCM Principal Opportunities Fund II, L.P.
c/o Oaktree Capital Management, LLC
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxx
AND
Bank of America Capital Investors II, L.P.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
AND
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxxxx, Esq.
18K. GOVERNING LAW. THE CORPORATE LAW OF VIRGINIA WILL GOVERN
ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS.
ALL OTHER ISSUES CONCERNING THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF
NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW OF
ANY JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
18L. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Investor
Rights Agreement on the day and year first above written.
THE COMPANY:
CAF HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Its:
------------------------------
THE SPONSORS:
OCM PRINCIPAL OPPORTUNITIES
FUND II, L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By: /s/ Xxxxxx Xxxx
------------------------------
Its:
------------------------------
BANCAMERICA CAPITAL
INVESTORS II, L.P.
By: BancAmerica Capital
Management II, L.P.
Its: General Partner
By: BACM II GP, LLC
Its: General Partner
By: /s/ Xxxxx Xxxxxxx
------------------------------
Its: Authorized Member
SIGNATURE PAGE TO THE INVESTOR
RIGHTS AGREEMENT
THE ROLLOVER PARTICIPANTS:
QUAD-C PARTNERS II, L.P.
By: Quad-C XI, L.C., its General
Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Vice President
QUAD-C PARTNERS III, L.P.
By: Quad-C II, L.C., its General
Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Vice President
QUAD-C PARTNERS IV, L.P.
By: Quad-C IV, L.C., its General
Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Vice President
QCP INVESTORS, LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Vice President
QCP INVESTORS II, LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Its: Vice President
SIGNATURE PAGE TO THE INVESTOR
RIGHTS AGREEMENT
PARIBAS PRINCIPAL INC.
By: /s/ Illegible Signature
------------------------------
Its: Vice President
/s/ Xxxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxxxxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
/s/ R. Xxx Xxxxxxxx
--------------------------
R. Xxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
/s/ J. Xxxxxx Xxxxxxxx
--------------------------
J. Xxxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxx
SIGNATURE PAGE TO THE INVESTOR
RIGHTS AGREEMENT
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------
Xxxxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxx
--------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. XxXxx
--------------------------
Xxxxxx X. XxXxx
/s/ Xxxxx X. Xxxxxxx
--------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx
/s/ Xxxxx Xxxx
--------------------------
Xxxxx Xxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxxxx
--------------------------
Xxxxxx Bennington
/s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
SIGNATURE PAGE TO THE INVESTOR
RIGHTS AGREEMENT
/s/ Xxx Xxxxx
--------------------------
Xxx Xxxxx
/s/ Xxxxx Xxxxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxxx Xxxxxx
/s/ F.L. Xxxxxx
--------------------------
F.L. Xxxxxx
/s/ Xxxxxxx Xxxxxxxx
--------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxx Xxxxxxx
--------------------------
Xxx Xxxxxxx
/s/ Xxxxx X. Xxxxx
--------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxx
--------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
--------------------------
Xxxxx Xxxxxxx
/s/ Xxx Xxxx
--------------------------
Xxx Xxxx
/s/ Xxx Xxxxx
--------------------------
Xxx Xxxxx
/s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx
Xxxxxx Xxxxxx
--------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxx
--------------------------
Xxxxxxx Xxxx
/s/ Xxx Xxxxxx
--------------------------
Xxx Xxxxxx
/s/ Xxx Xxxxxxxx
--------------------------
Xxx Xxxxxxxx
/s/ Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxx
--------------------------
Xxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
SIGNATURE PAGE TO THE INVESTOR RIGHTS AGREEMENT
/s/ Xxxx X. Xxxxxxxx
--------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxx
--------------------------
Xxxxx Xxxxx
/s/ Xxx Xxxxxxxx
--------------------------
Xxx Xxxxxxxx
/s/ Xxxx Xxxxxxx
--------------------------
Xxxx Xxxxxxx
/s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx
/s/ Xxx Xxxx
--------------------------
Xxx Xxxx
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
/s/ Xxx Xxxxxxxx
--------------------------
Xxx Xxxxxxxx
/s/ Xxxx XxXxxxxxx
--------------------------
Xxxx XxXxxxxxx
/s/ Xxxx Xxxxxxx
--------------------------
Xxxx Xxxxxxx
/s/ Xxxx X. Xxxxxx Xx.
--------------------------
Xxxx X. Xxxxxx Xx.
/s/ Xxx Xxxxxx
--------------------------
Xxx Xxxxxx
/s/ Xxxx X. Xxxxx
--------------------------
Xxxx X. Xxxxx
/s/ Xxxx Xxxxxxxx
--------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx
/s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx
/s/ Xxxx Xxxxxxx
--------------------------
Xxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx
/s/ Xxxx Xxxxxxxx
--------------------------
Xxxx Xxxxxxxx
SIGNATURE PAGE TO THE INVESTOR RIGHTS AGREEMENT
/s/ Xxx Xxxx
--------------------------
Xxx Xxxx
/s/ Xxxx X. Xxxxxxx, Xx.
--------------------------
Xxxx X. Xxxxxxx, Xx.
/s/ Xxxxx Xxxxxxxx
--------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxx
--------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxx Xxxxx Xxxxxxx
--------------------------
Xxxx Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
--------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
--------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx
--------------------------
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx
/s/ Xxxx X. Xxxxxxxxx
--------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxx Xxxxxxx Xxxxxxxx
--------------------------
Xxxx Xxxxxxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxx
---------------------------
Xxxxxxxx Xxxxx
SIGNATURE PAGE TO THE INVESTOR RIGHTS AGREEMENT
/s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx
/s/ Xxxxxx Xxxxx
--------------------------
Xxxxxx Xxxxx
/s/ Xxxx Shaipley
--------------------------
Xxxx Shaipley
SIGNATURE PAGE TO THE INVESTOR RIGHTS AGREEMENT
THE COINVESTORS:
NORWEST EQUITY
PARTNERS VII, L.P.
By: ITASCA LBO
PARTNERS VII, L.P.
Its: General Partner
By: /s/ Xxxxxxx XxXxxxx
--------------------------
Title: Partner
--------------------------
ABU DHABI INVESTMENT AUTHORITY
By: /s/ Hareb Al Darmaki
--------------------------
Title: Executive Director
--------------------------
XXXXXXXX XXXX PRIVATE EQUITY
FUND IV, L.P.
By: HLSP Investment
Management II Limited
Its: Managing General Partner
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Title: Director
--------------------------
PARIBAS NORTH AMERICA, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Title: CEO
--------------------------
CSFB CAF HOLDINGS, LLC
By: Merchant Capital, Inc.
Its: Managing Member
By: /s/ Xxxxxx Xxxxx
--------------------------
Title: VP
--------------------------
ANTARES CAPITAL CORPORATION
SIGNATURE PAGE TO THE INVESTOR RIGHTS AGREEMENT
By: /s/ [Illegible Signature]
--------------------------
Title: Managing Director
--------------------------
XXXXXXXX STREET PARTNERS III
By: /s/ Xxxx Weisserbach
--------------------------
Title:
--------------------------
