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EXHIBIT 10.6
Execution Copy
WARRANTHOLDER AGREEMENT (the "Agreement"), dated as of May 21,
1999, between The X. X. Xxxxxxx Company, Inc., a North
Carolina corporation (the "Company"), The 1818 Mezzanine Fund,
L.P., a Delaware limited partnership (the "Fund"), and
Charlesbank Equity Fund IV, Limited Partnership, a
Massachusetts limited partnership ("Charlesbank").
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INTRODUCTION
The Company and the Fund are parties to a Senior Subordinated
Note and Warrant Purchase Agreement (the "Warrant Purchase Agreement"), dated as
of May 7, 1997, pursuant to which the Fund purchased warrants (the "Warrants")
which are currently exercisable for an aggregate of 1,034,000 shares of Class A
Common Stock, par value $.01 per share, of the Company (the "Class A Common
Stock"). The Company and the Fund are also parties to a Registration Rights
Agreement (as amended from time to time in accordance with its terms, the
"Registration Rights Agreement"), dated as of May 7, 1997.
The Company, certain stockholders of the Company and
Charlesbank have entered into a Stock Purchase Agreement (the "Stock Purchase
Agreement"), dated as of April 21, 1999, pursuant to which such stockholders
have agreed to sell their shares of Common Stock of the Company to Charlesbank
on the terms and conditions set forth therein.
In consideration of the mutual benefits to be derived from the
transactions contemplated by the Stock Purchase Agreement, and as a condition to
the consummation of the transactions contemplated therein, the parties have
agreed to enter into this Agreement.
Capitalized terms used and not otherwise defined in the text
of this Agreement shall have the meanings given in Annex A to this Agreement.
The parties agree as follows:
ARTICLE I
EFFECTIVENESS OF AGREEMENT
SECTION 1.1. Effective Date. This Agreement shall be effective
upon the closing of the transactions contemplated by the Stock Purchase
Agreement, and shall remain in effect from and after the date such closing
occurs (the "Effective Date"). If, prior to the consummation of the transactions
contemplated therein, the Stock Purchase
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Agreement is terminated for any reason, this Agreement shall automatically
terminate and be of no further force and effect.
SECTION 1.2. Termination and Amendment of Existing Agreements.
Effective as of the Effective Date, (i) the Warrant Purchase Agreement is hereby
terminated and of no further force and effect, (ii) the certificate representing
the Warrants (together with any replacement certificate or certificates
therefor) shall be amended and restated as set forth in Article V and (iii) the
Registration Rights Agreement shall be amended and restated as set forth in
Article V.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1. Representations and Warranties of the Company. The
Company represents and warrants to the Fund as follows:
(a) Organization; Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
North Carolina and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
(b) Authority; Binding Agreement. The Company has all requisite
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by the Company are within its corporate powers and have been duly
and validly authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the Company, and
constitutes the valid and binding obligation of the Company, enforceable against
it in accordance with its terms.
(c) Non-Contravention. The execution, delivery and performance by
the Company of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) conflict with or result (with or
without due notice, the passage of time or both) in a breach of the articles of
incorporation or by-laws of the Company, (ii) conflict with, breach or result in
a default (or give rise to any right of termination, cancellation or
acceleration) under any material provision of any material note, bond, lease,
mortgage, indenture, agreement or other instrument or obligation to which the
Company is a party, or by which the Company or its properties or assets are
bound, or (iii) violate in any material respect any law, statute, rule or
regulation or judgment, order, writ, injunction or decree applicable to the
Company or its properties or assets.
(d) Governmental Authorization; Third Party Consents. No approval,
consent, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary in connection
with the
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execution, delivery and performance by the Company of this Agreement other than
those that have been obtained or will have been obtained as of the Effective
Date.
(e) No Anti-Dilution Events. No event has occurred since May 20,
1998 that would result in an adjustment pursuant to Section 2 of the Warrant
certificate.
SECTION 2.2. Representations and Warranties of the Fund. The Fund
represents and warrants to the Company as follows:
(a) Organization; Good Standing. The Fund is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
(b) Authority; Binding Agreement. The Fund has all requisite
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated. The execution, delivery and performance of this
Agreement by the Fund are within its powers and have been duly and validly
authorized by all necessary action on the part of the Fund. This Agreement has
been duly executed and delivered by the Fund, and constitutes the valid and
binding obligation of the Fund, enforceable against it in accordance with its
terms.
(c) Non-Contravention. The execution, delivery and performance by
the Fund of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) conflict with or result (with or without due
notice, the passage of time or both) in a breach of the constitutive documents
of the Fund, (ii) conflict with, breach or result in a default (or give rise to
any right of termination, cancellation or acceleration) under any material
provision of any material note, bond, lease, mortgage, indenture, agreement or
other instrument or obligation to which the Fund is a party, or by which the
Fund or its properties or assets are bound, or (iii) violate in any material
respect any law, statute, rule or regulation or judgment, order, writ,
injunction or decree applicable to the Fund or its properties or assets.
(d) Governmental Authorization; Third Party Consents. No approval,
consent, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary in connection
with the execution, delivery and performance by the Fund of this Agreement other
than those that have been obtained or will have been obtained as of the
Effective Date.
(e) No Exercise of Tag-Along Rights. The Fund has waived its
rights to exercise any tag-along rights previously granted to it pursuant to
Section 9.16 of the Warrant Purchase Agreement.
SECTION 2.3. Representations and Warranties of Charlesbank.
Charlesbank represents and warrants to the Fund as follows:
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(a) Organization; Good Standing. Charlesbank is a limited
partnership duly organized, validly existing and in good standing under the laws
of the Commonwealth of Massachusetts and has all requisite power and authority
to own, lease and operate its properties and to carry on its business as now
being conducted.
(b) Authority; Binding Agreement. Charlesbank has all requisite
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement by Charlesbank are within its powers and have been
duly and validly authorized by all necessary action on the part of Charlesbank.
This Agreement has been duly executed and delivered by Charlesbank, and
constitutes the valid and binding obligation of Charlesbank, enforceable against
it in accordance with its terms.
(c) Non-Contravention. The execution, delivery and performance by
Charlesbank of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) conflict with or result (with or
without due notice, the passage of time or both) in a breach of the constitutive
documents of Charlesbank, (ii) conflict with, breach or result in a default (or
give rise to any right of termination, cancellation or acceleration) under any
material provision of any material note, bond, lease, mortgage, indenture,
agreement or other instrument or obligation to which Charlesbank is a party, or
by which Charlesbank or its properties or assets are bound, or (iii) violate in
any material respect any law, statute, rule or regulation or judgment, order,
writ, injunction or decree applicable to Charlesbank or its properties or
assets.
(d) Governmental Authorization; Third Party Consents. No approval,
consent, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary in connection
with the execution, delivery and performance by Charlesbank of this Agreement
other than those that have been obtained or will have been obtained as of the
Effective Date.
ARTICLE III
TRANSFERS
SECTION 3.1. Transfers Generally.
(a) Fund. The Fund shall not, and shall cause its Affiliates not
to, effect any Transfer other than in accordance with the second sentence of
this Section 3.1(a) and Sections 3.2, 3.3, 3.4 and 3.5, to the extent that such
provisions have not terminated in accordance with their terms. The foregoing,
however, shall not restrict any Transfer by the Fund or an Affiliate of the Fund
(i) pursuant to the exercise of its rights under the Registration Rights
Agreement or (ii) to its Affiliates so long as such Affiliates agree to be bound
by the terms and conditions of this Agreement to the same extent as the Fund.
When used in this Agreement, "Transfer" means any sale, disposition, pledge or
other transfer of Warrants or shares of Capital Stock (including any New
Issuance Securities
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purchased pursuant to Section 4.1), whether directly or indirectly, and
including by means of a change of control of the Person holding such securities.
(b) Charlesbank. Charlesbank shall not, and shall cause its
Affiliates not to, effect any Transfer other than in accordance with Section
3.2, to the extent that the provisions of Section 3.2 have not terminated in
accordance with their terms. The foregoing, however, shall not restrict any
Transfer by Charlesbank or an Affiliate of Charlesbank (i) pursuant to a
registered offering or (ii) to its Affiliates so long as such Affiliates agree
to be bound by the terms and conditions of this Agreement to the same extent as
Charlesbank.
SECTION 3.2. Tag-Along Right.
(a) Applicability. If, at any time, Charlesbank desires to
Transfer to any Person (other than in a transaction not restricted under Section
3.1(b)) any shares of Capital Stock then owned by Charlesbank, Charlesbank shall
comply with the requirements of this Section 3.2. Notwithstanding the foregoing,
Charlesbank may Transfer shares of Capital Stock on or prior to the first
anniversary of the Effective Date to any Persons or groups of Persons, in one or
more transactions, without complying with the requirements of this Section 3.2;
provided, that, immediately after any such Transfer, Charlesbank and its
Affiliates collectively continue to hold (i) more than 50% of the Voting Power
of the Company and (ii) more than 50% of the total economic value of shares of
outstanding Capital Stock of the Company (excluding shares of Series A and
Series B Preferred Stock of the Company). "Voting Power" shall mean the total
number of votes which the outstanding shares of Common Stock are normally
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors of the Company, assuming for this purpose the exercise or
conversion of the Warrants and all other outstanding options, warrants or other
rights to acquire Common Stock.
(b) Tag-Along Offer. Prior to making any Transfer subject to this
Section 3.2, Charlesbank shall submit a written notice to the Fund (the
"Transferor's Notice") (i) specifying the number of shares of Capital Stock
proposed to be transferred (the "Subject Shares"), the identity of the proposed
transferee (if known) and the amount of consideration proposed to be received
and (ii) containing the Tag-Along Offer. Charlesbank shall offer (the "Tag-Along
Offer") to include in the proposed transfer a number of shares of Capital Stock
and Warrants designated by the Fund (the "Tag-Along Shares"), provided, that the
number of Tag-Along Shares shall not exceed the product of (x) the number of
Subject Shares and (y) a fraction, the numerator of which is the number of
shares of Capital Stock (assuming full exercise of the Warrants) held by the
Fund and the denominator of which is the number of shares of Capital Stock
outstanding on a fully diluted basis. The Tag-Along Offer shall be conditioned
upon Charlesbank consummating a transfer on substantially the terms described in
the Transferor's Notice to the transferee named in the Transferor's Notice, and
nothing in this Agreement shall be construed as an obligation on the part of
Charlesbank to consummate any such transfer.
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(c) Acceptance. The rights set forth in this Section 3.2 shall be
exercisable by the Fund by delivery of written notice of exercise (an
"Acceptance Notice") to Charlesbank within 10 Business Days after receipt of the
Transferor's Notice indicating the Fund's desire to exercise such rights and
specifying the number of Tag-Along Shares the Fund desires to include. If the
Fund does not indicate its desire to exercise the rights set forth in this
Section 3.2 in an Acceptance Notice or fails to provide an Acceptance Notice in
a timely manner, its rights under this Section 3.2 shall be deemed to have been
waived with respect to the particular transfer described in the Transferor's
Notice.
(d) Sale of Shares. If Charlesbank consummates a transfer of
Subject Shares pursuant to a Transferor's Notice, it shall transfer (or cause
the transfer of) (i) all of the Tag-Along Shares included in such transfer by
the Fund pursuant to a timely Acceptance Notice and (ii) the Subject Shares
identified in the Transferor's Notice (reduced by the amount of such Tag-Along
Shares) to the proposed transferee in accordance with the terms of such transfer
set forth in such Transferor's Notice. The price per share and form of
consideration for Tag-Along Shares shall be the same as the Transferor's
consideration received for Subject Shares (as adjusted for the exercise price of
any unexercised Warrants) and shall be subject, on a several and not joint
basis, to the same representations and warranties, covenants, indemnities,
holdbacks and escrow provisions, if any, and any similar components of the
Tag-Along Offer to which Charlesbank is subject; provided, that (x) to the
extent the Fund is required to provide indemnities in connection with the
transfer of Tag-Along Shares, it shall in no event be required to provide
indemnification that would result in an aggregate liability to the Fund in
excess of its proceeds from the sale of Tag-Along Shares pursuant to this
Section 3.2 and (y) such indemnities shall be made by the Fund severally and not
jointly. All fees and expenses incurred by the Fund (including, without
limitation, with respect to financial advisors, accountants and counsel to the
Fund) in connection with a transfer pursuant to this Section 3.2 shall be borne
by the Person incurring such fees and expenses. If a transfer pursuant to a
Transferor's Notice does not occur on or before the later of 120 days after the
date such Transferor's Notice was received by the Fund or five days after the
expiration or waiver of any waiting period applicable to such proposed transfer
pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, the provisions of this Section 3.2 shall again apply as if no such
Transferor's Notice had been given and no Tag-Along Offer made.
(e) Termination of Tag-Along Right. The provisions of this Section
3.2 shall terminate and be of no further force and effect from and after the
first to occur of (i) the consummation of an Initial Public Offering or (ii) the
date on which the Fund owns less than 10% of the shares of Common Stock issuable
upon exercise of the Warrants (assuming exercise of any unexercised Warrants).
This Section 3.2 shall be binding on Charlesbank and any of its Affiliates which
hold shares of Capital Stock. Any securities transferred in accordance with this
Section 3.2 shall not thereafter be subject to the provisions of this Section
3.2.
SECTION 3.3. Drag-Along Obligation.
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(a) General. In the event that any Person or group (as such term
is defined in Section 13(d) of the Exchange Act) desires to acquire shares of
Common Stock representing at least 70% of the Voting Power of the Company,
whether directly or indirectly, and the Board of Directors of the Company and
the holders of shares of Common Stock representing at least 70% of the Voting
Power of the Company approve of such acquisition, the Fund agrees to sell (and
to cause its Affiliates to sell) to such Person or group all of the Warrants,
shares of Common Stock and New Issuance Securities acquired pursuant to Section
4.1 owned by the Fund and its Affiliates and to execute and deliver all such
documents and instruments and take all such other actions as may be reasonably
necessary to effectuate such sale, provided that (i) each such Person receives
in connection with such acquisition the same price per share and form of
consideration (including any consideration allocated to employment, consulting
or non-competition agreements, but adjusted for the exercise price of any
unexercised Warrants) as all of the other holders of shares of Common Stock on a
pro rata basis and (ii) the reasonable costs and expenses incurred by each such
Person in connection with such sale are reimbursed on the same terms and
conditions as those offered to such other holders.
(b) Representations and Warranties Required. No Person required to
sell securities pursuant to Section 3.3(a) shall be required to (i) make any
representations and warranties to any Person in connection with such sale,
except as to (A) good title to the securities being sold, (B) absence of Claims
with respect to the securities being sold, (C) its valid existence and good
standing (if applicable) and (D) the authority and authorization for, and
validity, binding effect and enforceability of (as against such holder), any
agreement entered into by such Person in connection with such sale, or (ii)
provide any indemnities in connection with such sale except for breaches of the
representations and warranties specifically required under clause (i).
(c) Termination of Obligations. The provisions of this Section 3.3
shall be binding on the Fund and its Affiliates, and shall terminate and be of
no further force and effect from and after the consummation of an Initial Public
Offering. Compliance by the Fund and its Affiliates with their respective
obligations under this Section 3.3 may only be waived at the sole discretion of
Charlesbank.
SECTION 3.4. Right of First Offer.
(a) Applicability. If the Fund wishes at any time to Transfer any
Warrants, shares of Common Stock or New Issuance Securities acquired pursuant to
Section 4.1, in each case, held by the Fund or one or more of its Affiliates
(collectively, the "Offered Shares") to any Person (other than an Affiliate of
the Fund), the Fund shall (and shall cause its Affiliates to) first offer (the
"First Offer") to sell such Offered Shares to the Company and to Charlesbank as
provided in this Section 3.4.
(b) First Offer. Prior to making any Transfer, the Fund shall
submit a written notice to the Company and to Charlesbank (the "First Offer
Notice") (i) specifying the number of Offered Shares the Fund and its Affiliates
collectively
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propose to Transfer and (ii) containing a copy of the terms and conditions of
the First Offer. Upon receipt of a First Offer Notice, the Company (or, if the
Company declines to exercise such right, Charlesbank and/or one or more of its
Affiliates) shall be entitled to purchase all, but not less than all, of the
Offered Shares upon the terms and conditions set forth in the First Offer
Notice. The rights set forth in this Section 3.4 shall be exercisable by the
Company or Charlesbank, as the case may be, by delivery of written notice of
exercise (an "Exercise Notice") to the Fund within 10 days after submission of
the First Offer Notice. If neither the Company nor Charlesbank responds to the
Fund within such 10 day period, such failure shall be regarded as a rejection of
the First Offer by the Company and by Charlesbank.
(c) Sale of Shares. The closing of any purchase of Offered Shares
by the Person(s) purchasing such Offered Shares under this Section 3.4 shall be
held at the principal office of the Company on or before the 30th day following
delivery of the Exercise Notice (or such later time as may be necessary to
comply with any applicable legal requirements) or at such other time and place
as the parties to the transaction may agree. At such closing, the Fund shall
deliver or cause to be delivered certificates representing the Offered Shares
being purchased by the purchaser(s), duly endorsed for transfer and accompanied
by all requisite stock transfer taxes, and such Offered Shares shall be free and
clear of any Claims or other restrictions on voting or other incidents of record
and beneficial ownership (and the Fund shall so represent and warrant), and the
Fund shall further represent and warrant that it (together with one or more of
its Affiliates, as applicable) is the record and beneficial owner of all such
Offered Shares, with full authority and power to transfer such Offered Shares.
The Fund shall not be required to make any other representations or warranties
in connection with such transfer. The Person(s) purchasing the Offered Shares
shall deliver at the closing payment in full in cash for such shares. At such
closing, all of the parties to the transaction shall execute and/or deliver such
additional documents as are otherwise necessary or appropriate to effectuate the
transfer of the Offered Shares.
(d) Failure to Purchase. Notwithstanding anything to the contrary
contained in this Section 3.4, if all of the Offered Shares are not purchased by
the Company, Charlesbank or one or more of its Affiliates within the period
specified in Section 3.4(c), the Fund may Transfer (or cause to be Transferred)
to any other Person all, but not less than all, of the Offered Shares (i) for a
purchase price that is no lower than 100% of that stated in the First Offer
Notice and (ii) upon terms and conditions otherwise no more favorable to such
other Person than those stated in the First Offer Notice; provided, however,
that such transfer is bona fide and made before 90 days from the later of (i)
the date of the rejection of the First Offer, if it is rejected, or the failure
to consummate the purchase of the Offered Shares, if the First Offer is not
rejected and (ii) the date which is 10 days after the expiration or waiver of
any applicable waiting period to such proposed transfer pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended. If such sale
is not consummated within the period described in the proviso in the preceding
sentence, the restrictions provided for in this Section 3.4 shall again become
effective, and no transfer of Warrants, shares of Common Stock or New Issuance
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Securities otherwise subject to this Section 3.4 may be made thereafter without
again offering the same in accordance with the terms and conditions of this
Agreement.
(e) Termination of Right of First Offer. The provisions of this
Section 3.4 shall be binding on the Fund and its Affiliates, and shall terminate
and be of no further force and effect upon the first to occur of (i) the
consummation of an Initial Public Offering or (ii) a Change of Control of the
Company. Compliance by the Fund and its Affiliates with their respective
obligations under this Section 3.4 may only be waived at the sole discretion of
the Company and Charlesbank.
SECTION 3.5. Securities Law Compliance. If the Fund or any of its
direct or indirect transferees should in the future decide to dispose of any
Warrants, shares of Common Stock or New Issuance Securities acquired pursuant to
Section 4.1, such Person understands and agrees that it may do so only in
compliance with the Securities Act and applicable state securities laws, as then
in effect, and that stop-transfer instructions to that effect, where applicable,
will be in effect with respect to such securities. If the Fund or any of its
direct or indirect transferees should decide to dispose of such securities
(other than pursuant to its registration rights under the Registration Rights
Agreement), such Person, if requested by the Company, will have the obligation
in connection with such disposition, at such Person's expense, of delivering an
opinion of counsel of recognized standing in securities laws matters, in
connection with such disposition to the effect that the proposed disposition of
such securities would not be in violation of the Securities Act or any
applicable state securities laws and, assuming such opinion is required and is
otherwise appropriate in form and substance under the circumstances, the Company
will accept, and will recommend to any applicable transfer agent or trustee for
such securities that it accept, such opinion. Each such Person agrees to the
imprinting, so long as required by law, of a legend on certificates representing
all of such securities to the following effect: "THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED, QUALIFIED, APPROVED OR DISAPPROVED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS AND NEITHER
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER FEDERAL OR
STATE REGULATORY AUTHORITY HAS PASSED ON OR ENDORSED THE MERITS OF THESE
SECURITIES."
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 4.1. Preemptive Right.
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(a) Preemptive Right. Except with respect to Exempt Issuances (as
defined in Section 4.1(b)), if the Company proposes to issue any shares of
Capital Stock ("New Shares"), warrants, options or other rights to acquire
Capital Stock ("Rights") or notes, debentures or other securities convertible
into or exchangeable for shares of Capital Stock ("Convertible Securities"), the
Company will deliver to the Fund a written notice (the "New Issuance Notice")
not more than 45 days, and not less than 15 days, prior to the date of
completion of such issuance (the "New Issuance") or, if earlier, the date of
execution of definitive documentation with respect thereto, stating the price
and other terms and conditions thereof. The Fund shall have the right,
exercisable within 10 days of the receipt by the Fund of the New Issuance
Notice, to purchase (or be issued without consideration if the New Shares,
Rights or Convertible Securities to be issued in the New Issuance (the "New
Issuance Securities") are to be issued without consideration) all or any part of
its Pro Rata Share of the New Issuance Securities at the price and on the terms
on which the Company proposes to make the New Issuance, such price to be paid in
full in cash or by check against the issuance and delivery of the New Issuance
Securities; provided, however, that if the Company proposes to issue any notes,
debentures or other debt securities of the Company to which are attached any
Rights exercisable for a nominal exercise price, the Fund may purchase all or
any part of its Pro Rata Share of such Rights by purchasing the note, debenture
or other debt security to which such Right is attached, in the time period and
at the price and terms (including payment therefor) specified above for New
Issuance Securities. "Pro Rata Share" means the product of (x) the number of New
Issuance Securities and (y) a fraction, the numerator of which is the number of
shares of Capital Stock (assuming full exercise of the Warrants) held by the
Fund and the denominator of which is the number of shares of Capital Stock
outstanding on a fully diluted basis. Any New Issuance Securities (including any
securities acquired upon exercise, conversion or exchange of any Rights or
Convertible Securities) acquired by the Fund pursuant to this Section 4.1(a)
shall be subject to all the restrictions on Transfer set forth in this
Agreement.
(b) Exempt Issuances. Notwithstanding Section 4.1(a), the Fund
shall have no rights to subscribe for New Issuance Securities issued by the
Company (i) upon conversion or exercise of any Convertible Securities or Rights
outstanding or in effect on the Effective Date, (ii) to directors, officers,
employees, advisors or consultants of the Company or one of its Subsidiaries
pursuant to an incentive compensation, bonus, stock option, stock grant, stock
purchase or other similar plan or arrangement approved by the Board of Directors
of the Company, including without limitation upon the exercise of stock options
outstanding as of the Effective Date, (iii) to equipment lessors, banks,
financial institutions, manufacturers, vendors, suppliers or similar entities in
transactions approved by the Board of Directors, the principal purpose of which
is other than the raising of capital, (iv) as consideration in connection with
an acquisition by the Company or one of its Subsidiaries on an arm's-length
basis, (v) in a merger involving the Company that is approved by the Board of
Directors, the principal purpose of which is other than the raising of capital,
(vi) that are issued with any debt securities of the Company, so long as the New
Issuance Securities represent less than 5% of the outstanding Capital Stock,
(vii) pursuant to an Initial Public Offering or (viii) pursuant to
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a stock split, stock dividend, reclassification or other distribution made on a
pro rata basis to all holders of Capital Stock or a transaction which would
result in an adjustment under Section 2 of the Warrant certificate, as amended
by this Agreement (each, an "Exempt Issuance").
(c) Termination of Preemptive Rights. The provisions of this
Section 4.1 shall terminate and be of no further force and effect from and after
the first to occur of (i) the date on which the Fund owns less than 10% of the
shares of Common Stock issuable upon exercise of the Warrants (assuming exercise
of any unexercised Warrants) or (ii) an Initial Public Offering. The Fund's
rights to purchase New Issuance Securities under this Section 4.1 may be
assigned (x) to an Affiliate of the Fund, so long as such Affiliate agrees to be
bound by the terms and conditions of this Agreement with respect to such New
Issuance Securities to the same extent as the Fund, or (y) subject to Section
4.1(d), to a Fund Designee (as defined below).
(d) Fund Designee. If the Fund is "unable to exercise" its rights
(or cause an Affiliate to exercise its rights) to purchase all or a portion of
an issuance of New Issuance Securities in any transaction subject to this
Section 4.1, it shall have the right to transfer such rights with respect to all
or a portion of such issuance to a Person who is not an Affiliate of the Fund (a
"Fund Designee") as if such rights constituted Offered Shares under Section 3.4,
subject to the terms and conditions thereof. For purposes of this Section
4.1(d), "unable to exercise" means (i) with respect to the Fund, that the Fund
has insufficient investable funds available to it to purchase New Issuance
Securities, is otherwise precluded under its partnership agreement from
purchasing New Issuance Securities or, in the good faith judgment of Xxxxx
Brothers Xxxxxxxx & Co., the general partner of the Fund, it is imprudent or
unreasonable to invest additional capital in such New Issuance Securities, and
(ii) with respect to Affiliates of the Fund, that, in the good faith judgment of
Xxxxx Brothers Xxxxxxxx & Co., the general partner of the Fund, it is imprudent
or unreasonable to invest in New Issuance Securities through an Affiliate of the
Fund.
SECTION 4.2. Board Representation.
(a) Fund Nominee. The Company and Charlesbank shall promptly after
the date hereof cause a person designated by the Fund to be elected to its Board
of Directors, to the extent that there is not a designee of the Fund already
serving as a member of the Board of Directors. Such designee shall serve until
the annual meeting of stockholders of the Company immediately following the
election of such person to the Board of Directors. Commencing with the annual
meeting of stockholders of the Company immediately following the election of
such person to the Board of Directors, and at each annual meeting of
stockholders of the Company thereafter, the Fund shall be entitled to nominate
(in addition to any rights granted to the holders of Common Stock as set forth
in the Company's articles or certificate of incorporation), from time to time,
one director to the Company's Board of Directors. The Company shall cause such
nominee of the Fund to be included in the slate of nominees recommended by the
Board to the
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Company's stockholders for election as directors, and the Company shall use its
best efforts to cause the election of such nominee or nominees, including voting
all shares for which the Company holds proxies (unless otherwise directed by the
stockholder submitting such proxy) or is otherwise entitled to vote, in favor of
the election of such person. The Company shall ensure that any decision to
delegate all or substantially all of the duties of the Board of Directors to an
executive or similar committee shall require the consent of the Fund's nominee
unless he or she is appointed to serve on such committee.
(b) Vacancies. In the event any Board nominee of the Fund shall
cease to serve as a director for any reason, other than by reason of the Fund
not being entitled to nominate a nominee as provided in 4.2(d), the Company
shall use its best efforts to cause the vacancy resulting thereby to be filled
by a nominee of the Fund acceptable to a majority of the Board of Directors of
the Company, acting reasonably.
(c) Voting Agreement. Charlesbank shall, and shall cause its
Affiliates to, vote all shares of Common Stock it is entitled to vote in support
of the arrangements contemplated by this Section 4.2. The Fund shall, and shall
cause its Affiliates to, vote all shares of Common Stock they are entitled to
vote in favor of all persons nominated for election to the Board of Directors by
the Board of Directors, so long as Charlesbank and its Affiliates complied with
the obligations set forth in the preceding sentence.
(d) Termination of Rights. The provisions of this Section 4.2
shall terminate and be of no further force and effect from and after the first
to occur of (i) the consummation of an Initial Public Offering or (ii) the date
on which the Fund owns less than 33% of the shares of Common Stock issuable upon
exercise of the Warrants (assuming exercise of any unexercised Warrants).
SECTION 4.3. Issue Taxes. The Company shall pay, or cause to be
paid, all documentary and similar taxes levied under the laws of any applicable
jurisdiction in connection with the issuance of the Common Stock to be issued
upon exercise of the Warrants and the execution and delivery of this Agreement
and the other agreements and documents contemplated hereby and any modification
of the Warrants or such other agreements and documents and will hold the Fund
harmless, without limitation as to time, against any and all liabilities with
respect to all such taxes.
SECTION 4.4. Reservation of Shares. The Company shall at all times
reserve and keep available out of its authorized Common Stock, solely for the
purpose of issue or delivery upon exercise of all outstanding Warrants as
provided therein, such number of shares of Common Stock as shall then be
issuable or deliverable upon the exercise of all outstanding Warrants. Such
shares of Common Stock shall, when issued or delivered in accordance with the
terms of the Warrants, be duly and validly issued and fully paid and
non-assessable. The Company shall issue the Common Stock into which the Warrants
are convertible upon the proper surrender of the Warrants in accordance with the
provisions therein and shall otherwise comply with the terms thereof.
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SECTION 4.5. Registration and Listing. If any shares of Common
Stock required to be reserved for purposes of exercise of the Warrants as
provided in the Warrants require registration with or approval of any
Governmental Authority under any federal or state or other applicable law before
such Common Stock may be issued or delivered upon exercise of the Warrants, the
Company will in good faith and as expeditiously as possible endeavor to cause
such Common Stock to be duly registered or approved, as the case may be, unless
such registration or approval is required solely because of a breach of Section
3.5. In the event that, and so long as, the Common Stock is listed on the New
York Stock Exchange or quoted or listed on any other national securities
exchange or Nasdaq, the Company will, if permitted by the rules of such system
or exchange, quote or list and keep quoted or listed on such exchange or Nasdaq,
upon official notice of issuance, all Common Stock issuable or deliverable upon
exercise of the Warrants.
SECTION 4.6. Sale of Company. In the event of a contemplated sale
of all of the Capital Stock of the Company (by way of merger or otherwise), the
Company shall, if requested by the Fund, use its reasonable best efforts to
cause such sale transaction to be structured in a manner that requires the
purchaser(s) to purchase the Warrants held by the Fund and its Affiliates at a
price equal to the consideration such Persons would have received had the
Warrants been exercised immediately prior to the consummation of such sale
transaction (less the exercise price of such Warrants).
SECTION 4.7. Transactions with Affiliates. Until the earlier of
(i) the time the Fund is no longer entitled to designate a member of the Board
of Directors of the Company pursuant to Section 4.2 and (ii) an Initial Public
Offering, without the prior approval of a majority of the members of the Board
of Directors of the Company (including the director nominated by the Fund
pursuant to Section 4.2), the Company shall not, and shall not allow any of its
Subsidiaries to, enter into any transaction with Charlesbank or any Affiliate of
Charlesbank on terms less favorable to the Company or such Subsidiary than those
obtainable in a comparable arm's-length transaction with a Person other than
Charlesbank or an Affiliate of Charlesbank. This Section 4.7 shall not apply to
(x) transactions entered into pursuant to an agreement or arrangement in effect
on the Effective Date or (y) payments by the Company of monitoring fees to
Charlesbank and its Affiliates not to exceed $250,000, in the aggregate, in any
fiscal year.
SECTION 4.8. Charter Amendment. At any time as Charlesbank
requests prior to an Initial Public Offering, the Fund agrees to vote and cause
its Affiliates to vote all shares of Common Stock such Persons are entitled to
vote in favor of an amendment to the Company's articles of incorporation to
convert shares of Class B Common Stock, par value $.01, of the Company into
shares of Class A Common Stock.
SECTION 4.9. Certain Acknowledgments. The Fund has reviewed the
Stock Purchase Agreement and the forms, terms and provisions of each of (i) the
Amendment to the Company's 1997 Stock Option Plan, (ii) the Company's 1999 Stock
Option Plan, (iii) Stock Option Agreements between the Company and each of
Xxxxxx X.
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Roof, J. Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx and P. Xxxxxxx
Xxxxxxx (collectively, the "Executives"), (iv) the Securities Purchase and
Stockholders' Agreement among the Company and the Executives (including the form
and amount of payment for shares of Common Stock purchased thereunder) and (v)
Executive Severance Agreements between the Company and each of the Executives
and between the Company and J. Xxxxx XxXxxxxx, Xx., in each case, to be entered
into by the Company on or promptly after the Effective Date. The Fund hereby
ratifies, approves and consents to the foregoing agreements and arrangements in
its capacity as an equity investor in the Company, and further confirms that
none of the transactions contemplated thereby will result in an adjustment under
Section 2 of the Warrant certificate (as in effect immediately prior to the
Effective Date). The Fund further acknowledges and agrees that by executing and
delivering this Agreement it waives any rights it may have under Section 3(b) of
the Warrant certificate (as in effect immediately prior to the Effective Date)
as the result of the transactions contemplated by the Stock Purchase Agreement.
The Fund further acknowledges and agrees that by executing and delivering this
Agreement it consents and waives any rights with respect to the transfer
(effective April 30, 1999) of shares of Common Stock held by Xxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxxx, Xxxxx Xxxxxxx Xxxxx and Xxxxxx X. Xxxxx to AHG Partners, WHG
Partners and ST Partners, respectively.
SECTION 4.10. Inspection Rights. So long as the Fund or any of its
Affiliates holds equity securities of the Company, the Company will permit, and
will cause each of its Subsidiaries to permit, representatives of the Fund to
visit and inspect any of its properties, to examine its corporate, financial and
operating records and make copies thereof or abstracts therefrom, and to discuss
its affairs, finances and accounts with their respective directors, officers and
independent public accountants, all at such reasonable times during normal
business hours and as often as may be reasonably requested, upon reasonable
advance notice to the Company.
ARTICLE V
MODIFICATION OF EXISTING AGREEMENTS
SECTION 5.1. Warrants. On or prior to the Effective Date, the
Company shall execute and deliver an Amended and Restated Warrant in the form
attached as Exhibit A.
SECTION 5.2. Registration Rights Agreement. On or prior to the
Effective Date, the Company, the Fund and Charlesbank shall execute and deliver
an Amended and Restated Registration Rights Agreement in the form attached as
Exhibit B.
ARTICLE VI
MISCELLANEOUS PROVISIONS
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SECTION 6.1. Expenses; Attorneys' Fees. The Company shall
reimburse the Fund for all reasonable out-of-pocket expenses (including legal
fees and disbursements) incurred in connection with the negotiation, execution
and delivery of this Agreement, whether or not the Effective Date occurs. In any
action or proceeding brought to enforce any provision of this Agreement, the
Warrants or the Registration Rights Agreement or any other document or
instrument contemplated hereby or thereby, or where any provision hereof or
thereof is validly asserted as a defense, the successful party shall be entitled
to recover reasonable attorneys' fees, charges and disbursements in addition to
any other available remedy.
SECTION 6.2. Confidentiality. Each of the Fund and its direct and
indirect transferees will (subject to the Company's sole discretion to waive
compliance) utilize best efforts to maintain as confidential any confidential or
proprietary information obtained by such Person from the Company (other than
information which (i) at the time of disclosure or thereafter is generally
available to and known by the public (other than as a result of a disclosure
directly or indirectly by such Person or any of its representatives), (ii) is
available to such Person on a non-confidential basis from a source other than
the Company or its Subsidiaries, provided that such source was not known by such
Person to be bound by a confidentiality agreement (or other duty not to
disclose) with the Company or any of its Subsidiaries or (iii) has been
independently developed by such Person), and shall not disclose any such
information required to be maintained as confidential pursuant hereto, except
(a) to the Fund and its advisors, representatives, agents, partners and
employees who need to know such information (provided that the Fund shall be
responsible for any breach of this Section 6.2 by any such Person), (b) to its
advisors, representatives, agents, partners (and their representatives and
advisors) and employees (provided that the Fund shall be responsible for any
breach of this Section 6.2 by any such Person), (c) to any prospective
transferee of the Warrants or the shares of Common Stock issued upon the
exercise of the Warrants or of an interest in the Fund or in a successor fund
sponsored by Xxxxx Brothers Xxxxxxxx & Co., (d) as may be required by law
(including a court order, subpoena or other administrative order or process) or
applicable regulations to which the Fund is or becomes subject, (e) in
connection with any litigation arising out of or related to this Agreement, (f)
to the executive officers of the Company or any of its Subsidiaries, or (g) with
the prior written consent of the Company.
SECTION 6.3. Successors and Assigns; Further Assurances. Except as
otherwise expressly provided herein, the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Except as otherwise expressly provided herein,
no party hereto may assign any of its rights or obligations hereunder without
the prior written consent of each other party hereto. Any purported assignment
in violation of this Section 6.3 shall be void. To the extent that Affiliates or
direct or indirect transferees of any party to this Agreement are expressly
intended to be legally bound by any provision hereof, each party agrees upon the
request of any other party to use all commercially reasonable efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, all things
necessary,
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proper or advisable, including without limitation the execution and delivery of
assignments or joinder agreements or similar documents, to evidence such binding
effect.
SECTION 6.4. Entire Agreement. Effective as of the Effective Date,
this Agreement and the Warrants and the Registration Rights Agreement (each as
amended or and modified hereby) shall embody the entire agreement and
understanding of the parties hereto and supersede all other agreements or
understandings, written or oral, with respect to the subject matter hereof and
thereof.
SECTION 6.5. Parties In Interest. Except as otherwise expressly
provided herein, this Agreement is for the sole benefit of the parties hereto
and their respective successors and permitted assigns, and no term or provision
in this agreement is for the benefit of any other Person.
SECTION 6.6. Amendment and Waiver. No modification, amendment or
waiver of any provision of, or consent required by, this Agreement, nor any
consent to any departure from the terms of this Agreement, shall be effective
unless it is in writing and signed by the Company, the Fund and Charlesbank.
Such modification, amendment, waiver or consent shall be effective only in the
specific instance and for the purpose given.
SECTION 6.7. Notices. All notices, demands and other
communications provided for or permitted under this Agreement shall be made in
writing and shall be delivered by facsimile, overnight courier service or
personal delivery addressed as follows:
If to the Company:
The X.X. Xxxxxxx Company, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: J. Xxxxxxx Xxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx
If to Charlesbank, to:
Charlesbank Capital Partners, LLC
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000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx and
Xxxx X. Xxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
If to the Fund, to:
The 1818 Mezzanine Fund, L. P.
c/o Brown Brothers Xxxxxxxx & Co.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxx, Esq.
Facsimile: 212-757-3990
All such notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; on the first Business Day after
delivered to a courier, if delivered by overnight courier service; and when
receipt is acknowledged, if sent by facsimile.
SECTION 6.8. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
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SECTION 6.9. Rules of Interpretation. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement. Except as otherwise expressly provided in this
Agreement, the following rules of interpretation apply to this Agreement: (i)
the singular includes the plural and the plural includes the singular; (ii) "or"
and "any" are not exclusive and "include" and "including" are not limiting;
(iii) a reference to any agreement or other contract includes permitted
supplements and amendments; (iv) a reference to a law includes any amendment or
modification to such law and any rules or regulations issued thereunder; (v) a
reference to a Person includes its permitted successors and assigns; (vi) a
reference to generally accepted accounting principles refers to United States
generally accepted accounting principles; (vii) a reference in this Agreement to
an Article, Section, Annex, Exhibit or Schedule is to the Article, Section,
Annex, Exhibit or Schedule of this Agreement; and (viii) a reference to an
agreement or instrument includes any annexes, exhibits or schedules to the
specified agreement or instrument.
SECTION 6.10. Remedies. The parties to this Agreement acknowledge
that damages at law would be an inadequate remedy for the breach of any
provision contained in Section 3.2, 3.3, 3.4, 3.5, 4.1, 4.2 or 6.2 of this
Agreement, and agree in the event of such breach or threatened breach that the
non-breaching party may (i) obtain temporary and permanent injunctive relief
restraining the breaching party from such breach or threatened breach, and, to
the extent permissible under the applicable statutes and rules of procedure,
that a temporary injunction may be granted immediately upon the commencement of
a proceeding commenced under this Section 6.10 and (ii) enforce specifically
such provisions in any legal proceeding. Nothing contained in the preceding
sentence shall be construed as prohibiting any party from pursuing any other
remedies available at law or in equity for such breach or threatened breach of
any such provision of this Agreement.
SECTION 6.11. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROCEDURAL LAW OF SUCH STATE
REQUIRING THE APPLICATION OF THE LAWS OF A DIFFERENT JURISDICTION). EACH PARTY
TO THIS AGREEMENT HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY STATE
COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH PARTY TO THIS AGREEMENT
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HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY CONSENTS TO
SERVICE OF PROCESS BY NOTICE IN THE MANNER SPECIFIED IN SECTION 6.7 AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION SUCH
PARTY MAY NOW OR HEREAFTER HAVE TO SERVICE OF PROCESS IN SUCH MANNER.
SECTION 6.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Warrantholder Agreement as of the date first written above.
THE X. X. XXXXXXX COMPANY, INC.
By: /s/ J. Xxxxxxx Xxxxxxx
-----------------------------------------
Name: J. XXXXXXX XXXXXXX
Title: Sr. Vice President, General Counsel
& Secretary
THE 1818 MEZZANINE FUND, L. P.
Per Pro Xxxxx Brothers Xxxxxxxx & Co.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
CHARLESBANK EQUITY FUND IV,
LIMITED PARTNERSHIP
By: Charlesbank Equity Fund IV GP,
Limited Partnership, its general partner
By: Charlesbank Capital Partners, LLC
Its general partner
By: /s/ Xxx Xxxxx
-------------------------------------
Name: XXX XXXXX
Title: Managing Director
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: XXXX X. XXXXX
Title: Managing Director
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ANNEX A
TO WARRANTHOLDER AGREEMENT
DEFINED TERMS
"Affiliate" shall mean (i) with respect to any Person who is not a
natural person, any Person directly or indirectly controlling or controlled by
or under common control with such Person (where "control" means the direct or
indirect possession of the power to elect at least a majority of the Board of
Directors or other governing body or appoint the managing member of a Person
through the ownership of voting securities, ownership, membership or partnership
interests, by contract or otherwise, or if no such governing body or managing
member exists, the direct or indirect ownership of 50% or more of the equity
interests of a Person), (ii) with respect to Charlesbank, any limited or general
partner of Charlesbank or any of its Affiliates, (iii) with respect to the Fund,
any limited or general partner of the Fund or any of its Affiliates and (iv)
with respect to any Person who is a natural person, a Family Member of such
Person.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in the City of New York or the City of
Atlanta are authorized or required by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock (or equivalent ownership interests in a Person not a corporation)
whether now outstanding or hereafter issued, including, without limitation, all
common stock and preferred stock and any rights, warrants or options to purchase
such Person's capital stock.
"Change of Control" shall have the meaning set forth in the
Indenture, dated as of December 1, 1998, between the Company and the subsidiary
guarantors party thereto and First Union National Bank, as trustee, as
supplemented and amended from time to time in accordance with its terms.
"Claims" shall mean any and all security interests, liens,
pledges, charges, escrows, options, rights of first refusal, mortgages,
indentures, security agreements or other claims, encumbrances, agreements,
arrangements or commitments of any kind or character, whether written or oral
and whether or not relating in any way to credit or the borrowing of money, to
which any property or asset is subject or by which such property or asset is
bound.
"Class B Common Stock" shall mean the Class B Common Stock, $.01
par value, of the Company.
"Common Stock" shall mean the Class A Common Stock and the Class B
Common Stock.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange Commission
hereunder.
"Family Member" of a Person shall mean (x) a member of the
specified Person's immediate family, which shall include his or her ancestors,
spouse, siblings, descendants or spouses (or surviving spouses) of descendants,
or (y) a trust, corporation, limited liability company, partnership or other
entity, all of the beneficial interests in which shall be held directly or
indirectly by such Person or one or more persons described in clause (x);
provided, however, that during the period any such trust, corporation, limited
liability company, partnership or other entity holds any right, title or
interest in any Common Stock, no Person other than such Person or one or more
Family Members of such Person of the type listed in clause (x) may be or become
beneficiaries, stockholders or limited or general partners or owners thereof.
"Governmental Authority" shall mean the government of any nation,
state, city, locality or other political subdivision of any thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
"Initial Public Offering" shall mean the initial public offering
of the Common Stock with gross proceeds of at least $25 million or representing
at least 20% of the Common Stock on a fully diluted basis and such Common Stock
is listed or quoted on the NYSE or quoted or listed on any other national
securities exchange or the Nasdaq.
"Person" shall mean any individual, firm, corporation,
partnership, limited liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, Governmental Authority or other
entity of any kind, and shall include any successor (by merger or otherwise) of
any such entity.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
"Subsidiary" shall mean, with respect to any Person, a corporation
or other entity of which 50% or more of the combined voting power of the then
outstanding securities ordinarily (and apart from rights accruing under special
circumstances) having the right to vote in the election of directors is owned,
directly or indirectly, by such Person.
A-2
