EXHIBIT 3
TO
SCHEDULE 13D
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT ("Agreement"), dated as of July 2, 1996,
is among Xxxxx Wheels International, Inc., a Delaware corporation (the
"Company"), Xxxxxx Xxxxxxxxxx & Levy Fund II, L.P., a Delaware limited
partnership ("JLL"), Chase Equity Associates, a California limited partnership
("Chase"), CIBC WG Argosy Merchant Fund 2, L.L.C., a Delaware limited liability
company ("Argosy"), Nomura Holding America, Inc., a Delaware corporation
("Nomura"), and TSG Capital Fund II, L.P., a Delaware limited partnership
("TSG") (JLL, Chase, Argosy, Nomura and TSG, each being referred to herein as a
"Stockholder" and collectively being referred to herein as the "Stockholders").
W I T N E S S E T H
WHEREAS, pursuant to Subscription Agreements, each dated March 28,
1996, among each Stockholder, MWC Holdings, Inc., a Delaware corporation
("Holdings") and the Company ("Subscription Agreements"), each Stockholder
purchased (i) shares of preferred stock, $.01 per share ("Preferred Stock"), and
(ii) warrants ("Warrants") to purchase shares of common stock, par value $.01
per share, of the Company following consummation of the Merger (as defined
below) ("New Company Common Stock").
WHEREAS, immediately prior to the Merger, JLL owned 281.4815 shares of
common stock, par value $.01 per share of Holdings ("Holdings Common Stock").
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of
March 28, 1996, by and between Holdings and the Company (the "Merger
Agreement"), Holdings has been merged on the date hereof with and into the
Company (the "Merger"); and
WHEREAS, as a result of the Merger, (i) each share of Holdings Common
Stock issued and outstanding immediately prior to the Merger was converted into
(A) 8231.76 shares of New Company Common Stock and (B) 3029.29 Warrants and (ii)
each share of Preferred Stock issued and outstanding immediately prior to the
Merger was converted into 31.25 shares of New Company Common Stock.
WHEREAS, as a result of the Merger, on the date hereof, each
Stockholder owns (i) the number of shares of New Company Common Stock set forth
in column A opposite such Stockholder's name on Exhibit A hereto and (ii) the
number of Warrants set forth in column B opposite such Stockholder's name on
Exhibit A hereto.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
Certain Definitions
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) The term "Affiliate" shall have the meaning set forth in Rule
405 promulgated under the Securities Act.
(b) The term "Commission" shall mean the United States Securities
and Exchange Commission or any successor agency.
(c) The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(d) The term "Indenture" shall mean the Indenture, dated as of
July 2, 1996, by and among the Company, as issuer, the Guarantors named therein
and Comerica Bank, as trustee.
(e) The term "Market Value" shall mean the average of the closing
sales prices of the New Company Common Stock on the New York Stock Exchange
Composite Tape (or as reported on the principal exchange on which the New
Company Common Stock is then listed, which for these purposes includes the
Nasdaq Stock Market) during each of the five (5) consecutive trading days ending
on the trading day immediately prior to the date of any Demand.
(f) The term "Merger Agreement" shall mean the Agreement and Plan
of Merger, dated as of March 28, 1996, between MWC Holdings, Inc. and the
Company.
(g) The term "Permitted Transferee" shall mean, with respect to
each Person bound by the terms of this Agreement, (i) any other Stockholder;
(ii) in respect of a Stockholder, any affiliate or associate (as such terms are
defined in Rule 405 of the Securities Act) of such Stockholder or any other
Permitted Transferee of such Affiliate; (iii) the Company; (iv) in the event of
the dissolution, liquidation or winding up of any such Person that is a
corporation or a partnership, the partners of a partnership that is such Person,
the stockholders of a corporation that is such Person or a successor partnership
all of the partners of which or a successor corporation all of the stockholders
of which are the Persons who were the partners of such partnership or the
stockholders of such corporation immediately prior to the dissolution,
liquidation or winding up of such Person; (v) a transferee by testamentary or
intestate disposi- tion; (vi) a transferee by inter vivos transfer to the
transferring Person's spouse, children and/or other lineal descendants; (vii) a
trust transferee by inter vivos transfer, the beneficiaries of which are the
transferring Person, spouse, children and/or other lineal descendants; (viii) a
successor nominee or trustee for the beneficial owner of the Shares for which
such Person acts as nominee or trustee, as the case may be; or (ix) an
institutional lender for money borrowed pursuant to a bona fide pledge of or the
granting of a security interest in such Stockholder's Registrable Securities;
provided, however, that such institutional lender acknowledges in writing that
it agrees to be bound by, and hold the Registrable Securities being pledged
subject to, the terms of this Agreement.
(h) The term "Person" shall mean any individual, firm,
corporation, partnership, limited liability company or other entity, and shall
include any successor (by merger or otherwise) of such entity.
(i) The term "Public Offering" shall mean a public offering of
equity securities of the Company pursuant to an effective registration statement
under the Securities Act, including a public offering in which Stockholders are
entitled to sell Shares pursuant to the terms of Article V hereof.
(j) The term "Registrable Securities" shall mean (i) the Shares
owned by each Stockholder on the date hereof, as set forth opposite each
Stockholder's name on Exhibit A hereto, (ii) additional shares of New Company
Common Stock issued to one or more of the Stockholders upon the exercise of the
Warrants, and (iii) additional shares of New Company Common Stock acquired by
one or more Stockholders after the date hereof. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (i) a
registration statement registering such securities under the Securities Act has
been declared effective and such securities have been sold or otherwise
transferred by the holder thereof pursuant to such effective registration
statement, or (ii) such securities are sold in accordance with Rule 144 (or any
successor provision) promulgated under the Securities Act, or (iii) such
securities are trans- ferred under circumstances in which any legend borne by
the certificates for such securities relating to restrictions on transferability
thereof, under the Securities Act or otherwise, is removed by the Company.
(k) The term "Registration Period" shall mean the period
commencing on the second anniversary of the date hereof and expiring on the
eighth anniversary of this Agreement.
(l) The term "Registration Statement" shall mean the registration
statement filed with the Commission on Form S-4 under the Securities Act for the
purpose of registering the shares of New Company Common Stock (as defined in the
Merger Agreement) and Warrants (as defined in the Merger Agreement) issued in
connection with the Merger (as defined in the Merger Agreement).
(m) The term "Requisite Amount" shall mean Registrable Securities
having an aggregate Market Value as of the date of any Demand (as hereinafter
defined) of at least $15 million.
(n) The term "Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
(o) The term "Shares" shall mean the shares of New Company Common
Stock owned by each Stockholder on the date hereof, as set forth opposite each
Stockholder's name on Exhibit A hereto, and all shares of New Company Common
Stock acquired by any Stockholder after the date of this Agreement, including
without limitation, shares acquired upon exercise of the War- rants.
(p) The term "Transfer" shall mean any voluntary or involuntary
attempt to, directly or indirectly through the transfer of interests in
controlled Affiliates or otherwise, offer, sell, assign, transfer, grant a
participation in, pledge or otherwise dispose of any Shares, or the consummation
of any such transactions, or the soliciting of any offers to purchase or
otherwise acquire, or take a pledge of, any of the Shares, other than hedging or
other derivative transactions that hedge or otherwise relate to investment risks
in respect of any of the Shares; provided, however, that the transfer of an
interest in any of the Stockholders shall not be deemed to be a transfer.
ARTICLE II
Representations and Warranties and Covenants
Section 2.01. Representations and Warranties of the Company.
The Company represents and warrants to each Stockholder as follows:
(a) Corporate Authority. The Company has full power and authority
to execute, deliver and perform this Agreement;
(b) Due Authorization. This Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except that (i) the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting creditors rights, (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
certain equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought, and (iii) the rights to indemnity hereunder
may be limited by federal or state securities laws or the public policy
underlying such laws;
(c) No Conflict. The execution, delivery and performance of this
Agreement by the Company do not violate or conflict with or constitute a default
under (i) the Company s certificate of incorporation and by-laws, (ii) any
judgment, order or decree or statute, law, ordinance, rule or regulation of any
governmental entity applicable to the Company or (iii) any material agreement to
which it is a party or by which it or its property is bound;
(d) Registration Rights. Except as provided herein and for rights
granted pursuant to that certain Registration Rights Agreement, dated March 28,
1996, among the Company, Varity Corporation, a Delaware corporation, and its
wholly owned subsidiary K-H Corporation, a Delaware corporation, as of the date
hereof, no other party is entitled to any registration or similar right with
respect to any securities of the Company;
(e) Voting Agreements. Except as set forth herein, the Company is
not aware of any voting trust, voting agreement or arrangement with respect to
any of its voting securities; and
(f) Information in Disclosure Documents and Registration
Statement. None of the information in (i) the Registration Statement or (ii) the
joint proxy statement/prospectus distributed in connection with the meeting of
stockholders of each of MWC Holdings, Inc. ("Holdings") and the Company to vote
upon the Merger (as defined in the Merger Agreement) (the "Proxy Statement"), in
the case of the Registration Statement, at the time it became effective or, in
the case of the Proxy Statement or any amendments thereof or supplements
thereto, at the time of the initial mailing of the Proxy Statement and any
amendments or supplements thereto, and at the time of the meeting of
stockholders of Holdings and the Company held in connection with the Merger,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading. The Registration Statement, as of its effective date, complied as to
form in all material respects with the requirements of the Securities Act, and
the rules and regulations promulgated thereunder, and as of the date of its
initial mailing and as of the date of the Company's stockholders' meeting, the
Proxy Statement complied as to form in all material respects with the applicable
requirements of the Exchange Act, and the rules and regulations promulgated
thereunder. Notwithstanding the foregoing, the representations and warranties
contained in this Section 2.01(f) shall not apply to any statements or omissions
made in reliance upon or in conformity with information furnished in writing to
the Company by a Stockholder expressly for use therein.
Section 2.02 Representations and Warranties of the Stockholders.
Each Stockholder individually represents and warrants to each other
Stockholder and the Company as follows:
(a) Corporate Authority. The Stockholder has full power and
authority to execute, deliver and perform this Agreement;
(b) Due Authorization. This Agreement has been duly and validly
authorized, executed and delivered by the Stockholder and constitutes a valid
and binding obligation of the Stockholder, enforceable against the Stockholder
in accordance with its terms, except that (i) the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting creditors rights, (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought, and (iii) the rights to indemnity
and contribution hereunder may be limited by federal or state securities laws or
the public policy underlying such laws; and
(c) No Conflict. The execution, delivery and performance of this
Agreement by the Stockholder do not violate or conflict with or constitute a
default under (i) the Stockhold- er s organizational documents, (ii) any
judgment, order or decree or statute, law ordinance, rule or regulation of any
governmental entity applicable to the Stockholder, or any material agreement to
which it is a party or by which it or its property is bound.
Section 2.03. Covenants.
The Company covenants to each Stockholder that it will:
(a) Timely file all reports required to be filed by it under the
Exchange Act, and if at any time the Company is not required to file such
reports, it will take such further action as a Stockholder may reasonably
require, including, without limitation, supply and make publicly available any
other information in the possession of or reasonably obtainable by the Company,
with the purpose of allowing such holder to avail itself of Rule 144 of the
Securities Act or any other rule or regulation of the SEC allowing it to sell
securities without registration under the Securities Act. Upon the request of
any Stockholder, the Company will deliver to such Stockholder a written
statement as to its compliance with such requirements.
(b) Not repurchase, and shall cause each of its subsidiaries not
to repurchase, any shares of New Company Common Stock (other than shares of New
Company Common Stock repurchased to fund employee benefit plans) without the
written approval of the holders of at least 82.5% of the Shares outstanding on
the date hereof less any Shares subsequently Transferred other than to a Person
described in clauses (i) or (ii) of the definition of a Permitted Transferee.
(c) Afford to the Stockholders and their respective officers,
employees, financial advisors, legal counsel, accountants, consultants and other
representatives (except to the extent not permitted under applicable law as
advised by counsel and except as may be limited by any confidentiality
obligations contained in any contract with a third party) reasonable access
during normal business hours during the term of this Agreement to all of its
books and records and its properties and facilities and, during such period,
shall furnish promptly to each Stock- holder periodic financial and other
information provided to the Board or to JLL. Unless otherwise required by law,
each Stockholder agrees that it shall (i) hold in confidence all non-public
information so acquired and (ii) not use any such information as the basis for
any market transaction in the securities of the Company unless and until such is
made generally available to the public.
(d) Indemnify, to the fullest extent permitted by law, each
Stockholder, its officers, directors, employees, advisors, affiliates and
agents, from and against all losses, damages and liabilities which arise in
connection with any action or proceeding relating to the Registration Statement
or the Proxy Statement; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or omission or alleged
omission made in the Registration Statement or the Proxy Statement in reliance
upon and in conformity with written information furnished to the Company by any
Stockholder expressly for use therein.
(e) Not, directly or indirectly, enter into or suffer to exist
any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (including entities in which the Company or any of
its subsidiaries own a minority interest) or holder of 10% or more of the
Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or
otherwise modify the terms of any Affiliate Transaction entered into prior to
the date hereof unless (i) such Affiliate Transaction is between or among the
Company and/or its subsidiaries; or (ii) the terms of such Affiliate Transaction
are fair and reasonable to the Company or such subsidiary, as the case may be,
and the terms of such Affiliate Transaction are at least as favorable as the
terms which could be obtained by the Company or such subsidiary, as the case may
be, in a comparable transaction made on an arm's-length basis between
unaffiliated parties. The foregoing provisions of this Section 2.03(e) will not
apply to (i) any Restricted Payment as defined in the Indenture that is not
prohibited by Section 4.13 of the Indenture, (ii) reasonable and customary fees
paid by the Company or its subsidiaries to their respective directors or (iii)
customary investment banking, underwriting, placement agent or financial advisor
fees paid in connection with services rendered to the Company or its
subsidiaries.
ARTICLE III
Board of Directors
Section 3.01. Composition.
(a) Members. During the term of this Agreement, each of JLL, TSG
and Nomura will use their best efforts to cause the Board of Directors of the
Company (the "Board") to consist of nine (9) members, of which: (i) four members
shall be designees of JLL; (ii) one member shall be a designee of TSG; (iii) one
member shall be the Chief Executive Officer of the Company; and (iv) the other
three members shall be determined by the Board; provided, however, such members
determined by the Board shall not be affiliated with the Company or any of the
Stockholders. During the term of this Agreement, the Company shall use its best
efforts and shall exercise all authority under applicable law to cause to be
elected or appointed, as the case may be, as directors of the Company a slate of
directors consisting of individuals meeting the requirements of the previous
sentence. Argosy shall be entitled to appoint a representative who shall be
permitted to attend all meetings of the Board of Directors, but who shall have
no voting power. Such representative shall be given the same notice of any
meeting of the Board of Directors as is required to be provided to a member of
the Board of Directors and shall be entitled to participate in discussions and
consult with the Board of Directors. Such representative shall receive all
copies of all documents and shall have the same access to information provided
to members of the Board of Directors, in each case, at the same time as such
members of the Board of Directors. In addition, such representative shall
receive the same compensation or other economic consideration or benefits, if
any, that any member of the Board of Directors designated pursuant to clause (i)
or (ii) of this Section 3.01(a) receives.
(b) Failure to Designate. In the event that (i) a Stockholder
entitled to designate a nominee for the Board is unable to designate such a
nominee, or (ii) the designee of a Stockholder resigns, in either case, due to
any legal provision or restriction relating to such Stockholder, such
Stockholder shall have the right to designate one Person to attend, but not vote
at, any meeting of the Board.
(c) Removal. No Stockholder shall take any action to cause the
removal of any director designated by any other Stockholder other than "for
cause".
(d) Vacancies. If at any time a vacancy is created on the Board
by reason of the death, removal or resignation (other than pursuant to Section
3.01(b)) of any director who was nominated and elected as a director pursuant to
Section 3.01(a) above or this Section 3.01(d), the Stockholders shall, as soon
as practicable, vote their Shares or act by written consent with respect to such
Shares to elect the individual designated to fill such vacancy or vacancies by
the Stockholder who designated such former director to fill such vacancy for the
unexpired term of the director whom such individual is replacing.
(e) Decrease in Shares Held. Notwithstanding anything to the
contrary in this Section 3.01, in the event that any Stockholder entitled
pursuant to Section 3.01(a) to designate one or more individuals for nomination
and election to the Board shall, together with its affiliates or associates (as
such terms are defined in Rule 405 of the Securities Act), cease to own at least
50% of the Shares owned by such Stockholder on the date hereof, such Stockholder
shall no longer have any right pursuant to this Agreement to designate any
nominees for election to the Board.
(f) Board Designees. The majority of the directors then
comprising the Board shall have the right to designate nominees to be elected to
the Board for any available directorship as to which no Stockholder has the
right to designate a nominee pursuant to Section 3.01(a) hereof.
(g) Voting Agreement. Each of JLL, TSG and Nomura agrees that,
during the term of this Agreement, (i) it will be present, in person or
represented by proxy, at all stockholder meetings of the Company for the
election of directors, so that all shares of New Company Common Stock, including
the Shares, beneficially owned by it shall be counted for the purpose of
determining the presence of a quorum for the election of directors at such
meetings, and (ii) it shall vote, or act by consent with respect to, all shares
of New Company Common Stock, including the Shares, beneficially owned by it for
the election of the nominees for the Board nominated by the Board so long as
such nominees consist of individuals meeting the requirements of this Section
3.01. Except as specifically set forth in this Section 3.01(g), each of JLL, TSG
and Nomura shall be entitled to vote its Shares on all other matters as it deems
fit.
Section 3.02. Indemnification.
Immediately following the Merger, the Company shall enter into
indemnification agreements substantially in the form of Exhibit B hereto with
each member of the Board.
ARTICLE IV
Restrictions on Transfer
Section 4.01. General Restrictions.
(a) No Stockholder may Transfer any Shares prior to the second
anniversary hereof except for Transfers (i) to any of its Permitted Transferees;
provided, however, that prior to any Transfer of Shares, such Permitted
Transferee shall agree in writing to take such Shares subject to, and to comply
with, all of the provisions of this Agreement, a copy of which agreement shall
be on file with the Secretary of the Company and shall include the address of
such transferee to which notices hereunder shall be sent, (ii) pursuant to any
offer, including a tender or exchange offer, by any party (including the
Company) to purchase all of the outstanding shares of New Company Common Stock,
which offer has been approved by the Board and (iii) pursuant to any corporate
transaction requiring the approval of the holders of a majority of the shares of
outstanding New Company Common Stock and as to which the requisite approval of
the Stockholders shall have been obtained.
(b) From and after the second anniversary of the Merger until the
expiration or earlier termination of this Agreement, in addition to Transfers
permitted by Section 4.01(a), any Stockholder may Transfer any or all of its
Shares to any other Stockholder or any third party, pursuant to: (i) paragraphs
(e) and (f) of Rule 144 or any similar rule adopted by the Commission (whether
or not paragraph (k) of Rule 144 is applicable); (ii) a Public Offering; or
(iii) any other Transfer; provided, however, that prior to any Transfer of
Shares to a third party pursuant to this Section 4.01(b)(iii), such thirdparty
transferee shall agree in writing to take such Shares subject to, and to comply
with, the provisions of Section 3.01(g) of this Agreement. Notwithstanding
anything stated herein to the contrary, the Transfer of Shares by either JLL or
TSG shall not result in the assignment of such transferring Stockholder's rights
under Section 3.01(a) hereof.
Section 4.02. Compliance with Securities Laws.
Each Stockholder agrees that every Transfer of its Shares shall comply
with all federal and state securities laws applicable to such transaction. At
the request of the Company, the transferring Stockholder shall deliver to the
Company an opinion of counsel, which counsel and opinion shall be reasonably
satisfactory to the Company, to the effect that the sale, transfer or other
disposition satisfies this Section 4.02.
Section 4.03. Transfers Not In Compliance.
In the event of any purported or attempted Transfer of Shares by a
Stockholder that does not comply with this Agreement, the purported transferee
or successor by operation of law shall not be deemed to be a stockholder of the
Company for any purpose and shall not be entitled to any of the rights of a
stockholder, including, without limitation, the right to vote the Shares or to
receive a certificate for the Shares or any dividends or other distributions on
or with respect to the Shares.
Section 4.04. Tag-Along Rights.
Except as provided below, if, at any time during the term of this
Agreement, JLL proposes to directly or indirectly Transfer its Shares to a
Person (other than transfers to (a) persons or entities described in clauses
(ii) or (iv) of the definition of Permitted Transferee or (b) pursuant to a
Public Offering), JLL shall provide the remaining Stockholders (each a "Notice
Recipient") and the Company with not less than twenty (20) days' prior written
notice of such proposed sale, which notice shall include all of the terms and
conditions of such proposed sale and which shall identify such purchaser (the
"Sale Notice"); Each Notice Recipient shall have the option, exercisable by
written notice to JLL within ten (10) days after the receipt of the Sale Notice,
to require JLL to arrange for such purchaser or purchasers to purchase the same
percentage (the "Percentage") of the Shares then owned by such Notice Recipient
as the ratio of the total number of Shares which are to be sold by JLL pursuant
to the proposed sale to the total number of Shares owned by JLL immediately
prior to such Transfer, or any lesser amount of Shares as such Notice Recipient
shall desire, together with JLL's Shares at the same time as, and upon the same
terms and conditions (including all direct or indirect consideration or
compensation) at which, JLL sells its Shares; provided that such terms and
conditions shall (i) not include a covenant not to compete or (ii) provide for
indemnity or contribution in excess of such Notice Recipient's proceeds from
such sale. If a Notice Recipient shall so elect, JLL agrees that it shall either
(a) arrange for the proposed purchaser or purchasers to purchase all or a
portion (as such Notice Recipient shall specify) of the same Percentage of the
Shares then owned by such Notice Recipient at the same time as and upon the same
terms and conditions at which JLL sells its Shares (it being understood that in
the event such Notice Recipient's Shares require exercise, conversion or
exchange to effect such sale, such exercise, conversion or exchange may be made
simultaneously with the closing of such sale), and provided that if such
purchaser or purchasers shall elect to purchase only such aggregate number of
Shares as originally agreed with JLL, then the number of Shares to be sold by
JLL and all Notice Recipients electing to participate in the proposed sale shall
be reduced pro rata to such aggregate number, or (b) not effect the proposed
sale to such purchaser or purchasers. In the event that a Notice Recipient does
not exercise its right to participate in such sale or declines to so
participate, JLL shall have 120 days from the date of such Sale Notice to
consummate the transaction on the terms set forth therein without being required
to provide an additional Sale Notice to the remaining Stockholders.
Notwithstanding the foregoing, JLL shall not be obligated to provide any rights
pursuant to this Section 4.04 unless and until JLL has previously Transferred an
aggregate of at least 482,000 of its Shares.
Section 4.05 Restrictions on New Company Common Stock Acquired After the Date
Hereof.
No Stockholder or any of its controlled or commonly controlled
Affiliates may acquire additional shares of New Company Common Stock if, as a
result of any such acquisition, such Stockholder's ownership (together with the
ownership of any of its controlled or commonly controlled Affiliates) would be
in excess of 50% of the then outstanding shares of New Company Common Stock.
Shares of New Company Common Stock acquired by any Stockholder after the date of
this Agreement shall be treated the same as, and shall be subject to the same
restrictions as, Shares held by such Stockholder as of the date of this
Agreement for purposes of this Agreement.
ARTICLE V
Registration Rights
Section 5.01. Demand Registrations.
(a) Requests for Registration. During the Registration Period,
Stockholders holding the Requisite Amount of Registrable Securities shall be
entitled to make a written request of the Company (a "Demand") for registration
under the Securities Act of all or part of the Registrable Securities (a "Demand
Registration"). Such Demand shall specify: (i) the aggregate number of
Registrable Securities requested to be registered, (ii) the intended method of
distribution in connection with such Demand Registration to the extent then
known and (iii) the identity of the Stockholder or Stockholders (each, a
"Demanding holder") requesting such Demand. Within ten (10) days after receipt
of a Demand, the Company shall give written notice of such Demand to all other
Stockholders and shall include in such registration all Registrable Securities
with respect to which the Company has received a written request for inclusion
therein within twenty (20) days after the receipt by such Stockholder of the
Company's notice required by this paragraph.
(b) Number of Demands. Each of JLL, TSG, Argosy, Chase and Nomura
shall be entitled to two (2) Demand Registrations; provided, however, that each
Stockholder who is identified as a Demanding holder shall be deemed to have made
a demand with respect to such Demand Registration.
(c) Satisfaction of Obligations. A registration shall not be
treated as a permitted Demand for a Demand Registration until (i) the applicable
registration statement under the Securities Act has been filed with the
Commission with respect to such Demand Registration (which shall include any
registration statement that is not withdrawn by holders of Registrable
Securities in the circumstances contemplated by Section 5.03), and (ii) such
registration statement shall have been maintained continuously effective for a
period of at least ninety (90) days or such shorter period as all Registrable
Securities included therein have been disposed of thereunder in accordance with
the manner of distribution set forth in such registration statement.
(d) Availability of Short Form Registrations. The Company shall
use its best efforts to comply with the re- quirements for use of short form
registration for the sale of securities under the Securities Act.
(e) Restrictions on Demand Registrations. The Company shall not
be obligated (i) in the case of a Demand Registration, to maintain the
effectiveness of a registration statement under the Securities Act, for a period
longer than ninety (90) days or (ii) to effect any Demand Registration within
one hundred eighty (180) days after the effective date of (A) a "firm
commitment" underwritten registration in which all Stock- holders were given
"piggyback" rights pursuant to Section 5.02 hereof (provided that, with respect
to such a registration in which such piggyback rights were exercised, each such
Stockholder exercising such piggyback rights was permitted to include in such
registration at least 75% of the Registrable Securities that such Stockholder
sought to include therein) or (B) any other Demand Registration. In addition,
the Company shall be entitled to postpone (upon written notice to all
Stockholders) for up to ninety (90) days the filing or the effectiveness of a
registration statement in respect of a Demand (but no more than once in any
period of twelve (12) consecutive months) if the Board determines in good faith
and in its reasonable judgment that effecting the Demand Registration in respect
of such Demand would have a material adverse affect on any proposal or plan by
the Company to engage in any debt or equity offering, material acquisition or
disposition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or other similar transaction. In the event
of a postponement by the Company of the filing or effectiveness of a
registration statement in respect of a Demand, the Demanding holders shall have
the right to withdraw such Demand in accordance with Section 5.03 hereof.
(f) Participation in Demand Registrations. The Company shall not
include any securities other than Registrable Securities in a Demand
Registration, except with the written consent of the holders of the majority of
the Registrable Securities sought to be registered pursuant to such Demand
Registration held by all the Demanding holders. If, in connection with a Demand
Registration, any managing underwriter (or, if such Demand Registration is not
an underwritten offering, a nationally recognized independent underwriter
selected by the Demanding holders of a majority of the Registrable Securities
held by all the Demanding holders (which such underwriter shall be reasonably
acceptable to the Company and whose fees and expenses shall be borne solely by
the Company)) advises the Company and the Demanding holders of a majority of the
Registrable Securities held by all the Demanding holders that, in its opinion,
the inclusion of all the Registrable Securities and, if authorized pursuant to
this paragraph, other securities of the Company, in each case, sought to be
registered in connection with such Demand Registration would adversely affect
the marketability of the Registrable Securities sought to be sold pursuant
thereto, then the Company shall include in the registration statement applicable
to such Demand Registration only such securities as the Company and the holders
of Registrable Securities sought to be registered therein ("Demanding Sellers")
are advised by such underwriter can be sold without such an effect (the "Maximum
Demand Number"), as follows and in the following order of priority:
(i) first, the number of Registrable Securities received
pursuant to the Merger (excluding, for these purposes, Registrable Securities
issued upon exercise of Warrants received pursuant to the Merger) sought to be
registered by each Demanding Seller, pro rata in proportion to the number of
Registrable Securities received pursuant to the Merger sought to be registered
by all Demanding Sellers; and
(ii) second, if the number of Registrable Securities to be
included under clause (i) above is less than the Maximum Demand Number, the
number of Registrable Securities received other than pursuant to the Merger
(including, for these purposes, Registrable Securities issued upon exercise of
Warrants received pursuant to the Merger) sought to be registered by each
Demanding Seller, pro rata in proportion to the number of Registrable Securities
not received pursuant to the Merger sought to be registered by all Demanding
Sellers; and
(iii) third, if the number of Registrable Securities to be
included under clauses (i) and (ii) above is less than the Maximum Demand
Number, the number of securities sought to be included by each other seller, pro
rata in proportion to the number of securities sought to be sold by all such
other sellers, which in the aggregate, when added to the number of securities to
be included pursuant to clauses (i) and (ii) above, equals the Maximum Demand
Number.
(g) Selection of Underwriters. If the Demanding holders of a
majority of the Registrable Securities held by all the Demanding holders request
that such Demand Registration be an underwritten offering, then such holders
shall select a nationally recognized underwriter or underwriters to manage and
administer such offering, such underwriter or underwriters, as the case may be,
to be subject to the approval of the Company's Board of Directors, which
approval shall not be unreasonably withheld or delayed.
(h) Other Registrations. If the Company has received a Demand and
if the applicable registration statement in respect of such Demand 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 (other than a registration relating to the Company employee benefit plans,
exchange offers by the Company or a merger or acquisition of a business or
assets by the Company, including, without limitation, a registration 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 ninety (90)
days has elapsed from the effective date of any Demand Registration, unless a
shorter period of time is approved by the Demanding holders of a majority of the
Registrable Securities held by all the Demanding holders. Notwithstanding the
foregoing, the Company shall be entitled to postpone any such Demand
Registration and may file or cause to be effected such other registration in
accordance with the terms of Section 5.01(e) hereof.
Section 5.02 Piggyback Registrations.
(a) Right to Piggyback. During the Registration Period, whenever
the Company proposes to register any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (other than a registration relating to the Company employee
benefit plans, exchange offers by the Company or a merger or acquisition of a
business or assets by the Company including, without limitation, a registration
on Form S-4 or Form S-8 or any successor form) (a "Piggyback Registration"), the
Company shall give all Stockholders prompt written notice thereof (but not less
than ten (10) days prior to the filing by the Company with the Commission of any
registration statement with respect thereto). Such notice (a "Piggyback Notice")
shall specify, at a minimum, the number of securities proposed to be registered,
the proposed date of filing of such registration statement with the Commission,
the proposed means of distribution, the proposed managing underwriter or
underwriters (if any and if known), and a good faith estimate by the Company of
the proposed minimum offering price of such securities. Upon the written request
of a Stock- holder given within ten (10) business days of such Stockholder's
receipt of the Piggyback Notice (which written request shall specify the number
of Registrable Securities intended to be disposed of by such Stockholder and the
intended method of distribution thereof), the Company shall include in such
registration all Registrable Securities with respect to which the Company has
received such written requests for inclusion.
(b) Priority on Piggyback Registrations. If, in connection with a
Piggyback Registration, any managing underwriter (or, if such Piggyback
Registration is not an underwritten offering, a nationally recognized
independent underwriter selected by the Company (reasonably acceptable to the
holders of a majority of the Registrable Securities sought to be included in
such Piggyback Registration and whose fees and expenses shall be borne solely by
the Company)) advises the Company and the holders of the Registrable Securities
to be included in such Piggyback Registration, that, in its opinion, the
inclusion of all the securities sought to be included in such Piggyback
Registration by the Company, any Persons who have sought to have shares
registered thereunder pursuant to rights to demand (other than pursuant to
so-called "piggyback" or other incidental or participation registration rights)
such registration (such demand rights being "Other Demand Rights" and such
Persons being "Other Demanding Sellers"), any holders of Registrable Securities
seeking to sell such securities in such Piggyback Registration ("Piggyback
Sellers") and any other proposed sellers, in each case, if any, would adversely
affect the marketability of the securities sought to be sold pursuant thereto,
then the Company shall include in the registration statement applicable to such
Piggyback Registration only such securities as the Company, the Other Demanding
Sellers, and the Piggyback Sellers are so advised by such underwriter can be
sold without such an effect (the "Maximum Piggyback Number"), as follows and in
the following order of priority:
(i) if the Piggyback Registration is an offering on behalf
of the Company and not any Person exercising Other Demand Rights (whether
or not other Persons seek to include securities therein pursuant to
so-called "piggyback" or other incidental or participatory registration
rights) (a "Primary Offering"), then (A) first, such number of securities
to be sold by the Company as the Company, in its reasonable judgment and
acting in good faith and in accordance with sound financial practice, shall
have determined, (B) second, if the number of securities to be included
under clause (A) above is less than the Maximum Piggyback Number, the
number of Registrable Securities received pursuant to the Merger
(excluding, for these purposes, Registrable Securities issued upon exercise
of Warrants received pursuant to the Merger) sought to be registered by
each Piggyback Seller, pro rata in proportion to the number of Registrable
Securities received pursuant to the Merger sought to be registered by all
the Piggyback Sellers, (C) third, if the number of securities to be
included under clauses (A) and (B) above is less than the Maximum Piggyback
Number the number of Registrable Securities received other than pursuant to
the Merger (including, for these purposes, Registrable Securities issued
upon exercise of Warrants received pursuant to the Merger) sought to be
registered by each Piggyback Seller, pro rata in proportion to the
Registrable Securities not received in the Merger sought to be registered
by all the Piggyback Sellers and all other proposed sellers, which in the
aggregate, when added to the number of securities to be registered under
clauses (A) and (B) above, equals the Maximum Piggyback Number;
(ii) if the Piggyback Registration is an offering other than
pursuant to a Primary Offering, then (A) first, such number of securities
sought to be registered by each Other Demanding Seller, pro rata in
proportion to the number of securities sought to be registered by all such
Other Demanding Sellers, (B) second, if the number of securities to be
included under clause (A) above is less than the Maximum Piggyback Number,
the number of Registrable Securities received pursuant to the Merger
(excluding, for these purposes, Registrable Securities issued upon exercise
of Warrants received pursuant to the Merger) sought to be registered by
each Piggyback Seller, pro rata in proportion to the number of Registrable
Securities received pursuant to the Merger sought to be registered by all
the Piggyback Sellers, (C) third, if the number of securities to be
included under clauses (A) and (B) above is less than the Maximum Piggyback
Number, the number of Registrable Securities received other than pursuant
to the Merger (including, for these purposes, Registrable Securities issued
upon exercise of Warrants received pursuant to the Merger) sought to be
registered by each Piggyback Seller, pro rata in proportion to the
Registrable Securities received other than pursuant to the Merger sought to
be registered by all the Piggyback Sellers and all other proposed sellers,
which in the aggregate, when added to the number of securities to be
registered under clauses (A) and (B) above, equals the Maximum Piggyback
Number.
(c) Withdrawal by the Company. If, at any time after giving
written notice of its intention to register any of its securities as set forth
in Section 5.02 and prior to time the registration statement filed in connection
with such registration is declared effective, the Company shall determine for
any reason not to register such securities, the Company may, at its election,
give written notice of such determination to each Stock- holder and thereupon
shall be relieved of its obligation to register any Registrable Securities in
connection with such particular withdrawn or abandoned registration (but not
from its obligation to pay the Registration Expenses in connection therewith as
provided herein). In the event that the Piggyback Sellers of such a registration
hold the Requisite Amount of Registrable Securities, such holders may continue
the registration as a Demand Registration. The continuation of such registration
shall be counted as a Demand for all Stockholders who continue as participants
in such registration.
Section 5.03. Withdrawal Rights.
Any Stockholder having notified or directed the Company to include any
or all of its Registrable Securities in a registration statement under the
Securities Act shall have the right to withdraw any such notice or direction
with respect to any or all of the Registrable Securities designated for
registration thereby by giving written notice to such effect to the Company
prior to the effective date of such registration statement. In the event of any
such withdrawal, the Company shall not include such Registrable Securities in
the applicable registra- tion and such Registrable Securities shall continue to
be Registrable Securities hereunder. No such withdrawal shall affect the
obligations of the Company with respect to the Registrable Securities not so
withdrawn; provided that in the case of a Demand Registration, if such
withdrawal shall reduce the number of Registrable Securities sought to be
included in such registration below the Requisite Amount, then the Company shall
as promptly as practicable give each holder of Registrable Securities sought to
be registered notice to such effect, referring to this Agreement and summarizing
this Section 5.03, and within five (5) business days following the effectiveness
of such notice, either the Company or the holders of a majority of the
Registrable Securities sought to be registered may, by written notices made to
each holder of Registrable Securities sought to be registered and the Company,
respectively, elect that such registration statement not be filed or, if
theretofore filed, be withdrawn. During such five (5) business day period, the
Company shall not file such registration statement if not theretofore filed or,
if such registration statement has been theretofore filed, the Company shall not
seek, and shall use its best efforts to prevent, the effectiveness thereof. Any
registration statement withdrawn or not filed (i) in accordance with an election
by the Company, (ii) in accordance with an election by the holders of the
majority of the Registrable Securities sought to be registered pursuant to such
Demand Registration held by all the Demanding holders pursuant to Section
5.01(e) hereof, (iii) in accordance with an election by the holders of the
majority of the Registrable Securities sought to be registered pursuant to such
Demand Registration held by all the Demanding holders prior to the effectiveness
of the applicable Demand Registration Statement or (iv) in accordance with an
election by the holders of the majority of the Registrable Securities sought to
be registered pursuant to such Demand Registration held by all the Demanding
holders subsequent to the effectiveness of the applicable Demand Registration
Statement, if any post-effective amendment or supplement to the applicable
Demand Registration Statement contains adverse information regarding the Company
shall not be counted as a Demand. Except as set forth in clause (iv) of the
previous sentence any Demand withdrawn in accordance with an election by the
Demanding holders subsequent to the effectiveness of the applicable Demand
Registration Statement shall be counted as a Demand unless the Stockholders
reimburse the Company for its reasonable out-of-pocket expenses (but, without
implication that the contrary would otherwise be true, not including any
Internal Expenses, as defined below) related to the preparation and filing of
such registration statement (in which event such registration statement shall
not be counted as a Demand hereunder). Upon the written request of a majority of
the Stockholders, the Company shall promptly prepare a definitive statement of
such out-of-pocket expenses in connection with such registration statement in
order to assist such holders with a determination in accordance with the next
preceding sentence.
Section 5.04. Holdback Agreements.
Each Stockholder agrees not to effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, during the ten (10) day period prior to the date which the Company
has, or in the case of a Demand Registration, the Demanding holders have,
notified the Stockholders that it or they intend to commence a Public Offering
through the sixty (60) day period immediately following the effective date of
any Demand Registration or any Piggyback Registration (in each case, except as
part of such registration), or, in each case, if later, the date of any
underwriting agreement with respect thereto; provided, however, that the
Stockholders shall not be obligated to comply with this Section 5.04 on more
than one (1) occasion in any nine (9) month period. The holders of 82.5% of the
Registrable Securities included in a Demand Registration may waive the
limitation contained in this paragraph with respect to such Demand Registration.
Section 5.05. Registration Procedures.
(a) Whenever the Stockholders have requested that any Registrable
Securities be registered pursuant to this Agreement (whether pursuant to Demand
Registration or Piggyback Registration), the Company (subject to its right to
withdraw such registration as contemplated by Section 5.02(c)) shall use its
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof and, in
connection therewith, the Company shall as expeditiously as possible:
(i) prepare and file with the Commission a registration
statement with respect to such Registrable Securities on any form for which the
Company then qualifies and is available for the sale of Registrable Securities
to be registered thereunder in accordance with the intended method of
distribution and use its best efforts to cause such registration statement to
become effective within ninety (90) days of the date hereof;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for a continu- ous period of not less than ninety (90) days (or, if
earlier, until all Registrable Securities included in such registration
statement have been sold thereunder in accordance with the manner of
distribution set forth therein) and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof as set forth in such registration
statement (including, without limitation, by incorporating in a prospectus
supplement or post-effective amendment, at the request of a seller of
Registrable Securities, the terms of the sale of such Registrable Securities);
(iii) before filing with the Commission any such
registration statement or prospectus or any amendments or supplements thereto,
the Company shall furnish to counsel selected by the Demanding holders of a
majority of the Registrable Securities held by the Demanding holders, counsel
for the underwriter or sales or placement agent, if any, and any other counsel
for holders of Registrable Securities, if any, in connection therewith, drafts
of all such documents proposed to be filed and provide such counsel with a
reasonable opportunity for review thereof and comment thereon, such review to be
conducted and such comments to be delivered with reasonable promptness;
(iv) promptly (i) notify each seller of Registrable
Securities of each of (x) the filing and effectiveness of the registration
statement and prospectus and any amendment or supplements thereto, (y) the
receipt of any comments from the Commission or any state securities law
authorities or any other governmental authorities with respect to any such
registration statement or prospectus or any amendments or supplements thereto,
and (z) any oral or written stop order with respect to such registration, any
suspension of the registration or qualification of the sale of such Registrable
Securities in any juris- diction or any initiation or threatening of any
proceedings with respect to any of the foregoing and (ii) use its best efforts
to obtain the withdrawal of any order suspending the registration or
qualification (or the effectiveness thereof) or suspending or preventing the use
of any related prospectus in any jurisdiction with respect thereto;
(v) furnish to each seller of Registrable Securities, the
underwriters and the sales or placement agent, if any, and counsel for each of
the foregoing, a conformed copy of such registration statement and each
amendment and supplement thereto (in each case, including all exhibits thereto
and documents incorporated by reference therein) and such additional number of
copies of such registration statement, each amendment and supplement thereto (in
such case without such exhibits and documents) the prospectus (including each
preliminary prospectus) included in such registration statement and prospectus
supplements and all exhibits thereto and documents incorporated by reference
therein and such other documents as such seller, underwriter, agent or counsel
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Seller;
(vi) if requested by the managing underwriter or
underwriters of any registration or by the Demanding holders of a majority of
the Registrable Securities held by the Demanding holders, subject to approval of
counsel to the Company in its reasonable judgment, promptly incorporate in a
prospectus, supplement or post-effective amendment to the registration statement
such information concerning underwriters and the plan of distribution of the
Registrable Securities as such managing underwriter or underwriters or such
holders reasonably shall furnish to the Company in writing and request be
included therein, including, without limitation, with respect to the number of
Registrable Securities being sold by such holders to such underwriter or
underwriters, the purchase price being paid therefor by such underwriter or
underwriters and with respect to any other terms of the underwritten offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such prospectus, supplement or post-effective amendment as soon as
possible after being notified of the matters to be incorporated in such
prospectus, supplement or post-effective amendment;
(vii) use its best efforts to register or qualify such
Registrable Securities under such securities or "blue sky" laws of such
jurisdictions as the holders of a majority of Registrable Securities sought to
be registered reasonably request and do any and all other acts and things which
may be reasonably necessary or advisable to enable the holders of a majority of
Registrable Securities sought to be registered to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such holders and keep
such registration or qualification in effect for so long as the registration
statement remains effective under the Securities Act (provided that the Company
shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph, (y) subject itself to taxation in any such jurisdiction where it
would not otherwise be subject to taxation but for this paragraph or (z) consent
to the general service of process in any jurisdiction where it would not
otherwise be subject to general service of process but for this paragraph);
(viii) 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 the discovery that, or of the happening of any event as
a result of which, the registration statement covering such Registrable
Securities, as then in effect, contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or any fact
necessary to make the statements therein not misleading, and promptly prepare
and furnish to each such seller a supplement or amendment to the prospectus
contained in such registration statement so that such Registration Statement
shall not, and such prospectus as thereafter delivered to the purchasers of such
Registrable Securities shall not, contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or any fact
necessary to make the statements therein not misleading;
(ix) cause all such Registrable Securities to be listed on
the New York Stock Exchange and/or any other securities exchange and included in
each established over-the-counter market on which or through which similar
securities of the Company are listed or traded and, if not so listed or traded,
to be listed on the NASD automated quotation system ("Nasdaq") and if listed on
Nasdaq, use its reasonable efforts to secure designation of all such Registrable
Securities covered by such registration statement as a Nasdaq "national market
system security" within the meaning of Rule 11Aa2-1 under the Securities
Exchange Act of 1934, as amended, or, failing that, to secure Nasdaq
authorization for such Registrable Securities;
(x) 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, attorneys and independent
accountants to supply all information reasonably requested by any such sellers,
underwriters, attorneys, accountants or agents in connection with such
registration statement. Information which the Company determines, in good faith,
to be confidential shall not be disclosed by such persons unless (x) the
disclosure of such information is necessary to avoid or correct a misstatement
or omission in such registration statement, or (y) the release of such
information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. Each seller of Registrable Securities agrees, on its own
behalf and on behalf of all its underwriters, accountants, attorneys and agents,
that the information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public. Each seller of Registrable Securities further
agrees, on its own behalf and on behalf of all its underwriters, accountants,
attorneys and agents, that it will, upon learning that disclosure of such
information is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the information deemed confidential;
(xi) use its best efforts to comply with all applicable laws
related to such registration statement and offering and sale of securities and
all applicable rules and regulations of governmental authorities in connection
therewith (including, without limitation, the Securities Act and the Exchange
Act) and make generally available to its security holders as soon as practicable
(but in any event not later than fifteen (15) months after the effectiveness of
such registration statement) an earnings statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act;
(xii) permit any Stockholder, which Stockholder, in its sole
and exclusive judgment, might be deemed to be an underwriter or controlling
person of the Company, to participate in the preparation of such registration
statement and to require the insertion therein of material, furnished to the
Company in writing, which in the reasonable judgment of such holder and such
holder's counsel should be included;
(xiii) use reasonable best efforts to furnish to each seller
of Registrable Securities a signed counterpart of (x) an opinion of counsel for
the Company and (y) a "comfort" letter signed by the independent public
accountants who have certified the Company's financial statements included or
incorporated by reference in such registration statement, covering such matters
with respect to such registration statement and, in the case of the accountants'
comfort letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and in
accountants' comfort letters delivered to the underwriters in underwritten
public offerings of securities for the account of, or on behalf of, an issuer of
common stock, such opinion and comfort letters to be dated the date of such
opinions and comfort letters are customarily dated in such transactions, and
covering in the case of such legal opinion, such other legal matters and, in the
case of such comfort letter, such other financial matters, as the holders of a
majority of the Registrable Securities being sold may reasonably request;
(xiv) 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; and
(xv) the Company shall use its best reasonable efforts so
that in lieu of exercising any Warrant prior to or simultaneously with the
filing or the effectiveness of any registration statement filed pursuant to this
Article V, the holder of such Warrant may sell such Warrant to the underwriter
of the offering being registered upon the undertaking of such underwriter to
exercise such Warrant before making any distribution pursuant to such
registration statement and to include the Common Stock issued upon such
conversion among the securities being offered pursuant to such registration
statement. The Company agrees to cause such Common Stock to be included among
the securities being offered pursuant to such registration statement to be
issued within such time as will permit the underwriter to make and complete the
distribution contemplated by the underwriting.
(b) Underwriting. Without limiting any of the foregoing, in the
event that the offering of Registrable Securities is to be made by or through an
underwriter, the Company shall enter into an underwriting agreement with a
managing underwriter or underwriters containing representations, warranties,
indemnities and agreements customarily included (but not inconsistent with the
agreements contained herein) by an issuer of common stock in underwriting
agreements with respect to offerings of common stock for the account of, or on
behalf of, such issuers. In connection with the sale of Registrable Securities
hereunder, any seller of such Registrable Securities may, at its option, require
that any and all representations and warranties by, and indemnities and
agreements of, the Company to or for the benefit of such underwriter or
underwriters (or which would be made to or for the benefit of such an
underwriter or underwriter if such sale of Registrable Securities were pursuant
to a customary underwritten offering) be made to and for the benefit of such
seller and that any or all of the conditions precedent to the obligations of
such underwriter or underwriters (or which would be so for the benefit of such
underwriter or underwriters under a customary underwriting agreement) be
conditions precedent to the obligations of such seller in connection with the
disposi- tion of its securities pursuant to the terms hereof (it being agreed
that in connection with any Demand Registration, without limiting any rights or
remedies of the Stockholders, in the event any such condition precedent shall
not be satisfied and, if not so satisfied, shall not be waived by the holders of
a majority of the Registerable Securities to be included in such Demand
Registration, such Demand Registration shall not be counted as a permitted
Demand hereunder). In connection with any offering of Registrable Securities
registered pursuant to this Agreement, the Company shall (x) furnish to the
underwriter, if any (or, if no underwriter, the sellers of such Registrable
Securities), unlegended certificates representing ownership of the Registrable
Securities being sold, in such denominations as requested and (y) instruct any
transfer agent and registrar of the Registrable Securities to release any stop
transfer order with respect thereto.
(c) Return of Prospectuses. Each seller of Registrable Securities
hereunder agrees that upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5.05(a)(viii), such
seller shall forthwith discontinue such seller's disposition of Registrable
Securities pursuant to the applicable registration statement and prospectus
relating thereto until such seller's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 5.05(a)(viii) and, if so directed
by the Company, deliver to the Company all copies, other than permanent file
copies, then in such seller's possession of the prospectus current at the time
of receipt of such notice relating to such Registrable Securities. In the event
the Company shall give such notice, the ninety (90)day period during which such
registration statement must remain effective pursuant to this Agreement shall be
extended by the number of days during the period from the date of giving of a
notice regarding the happening of an event of the kind described in Section
5.05(a)(viii) to the date when all such sellers shall receive such a
supplemented or amended prospectus and such prospectus shall have been filed
with the Commission.
Section 5.06. Registration Expenses.
All expenses incident to the Company's performance of, or compliance
with, its obligations under this Agreement including, without limitation, all
registration and filing fees, all fees and expenses of compliance with
securities and "blue sky" laws (including, without limitation, the fees and
expenses of counsel for underwriters or placement or sales agents in connection
therewith), all printing and copying expenses, all messenger and delivery
expenses, all fees and expenses of underwriters and sales and placement agents
in connection therewith (excluding discounts and commissions and the fees and
expenses of counsel therefor), all fees and expenses of the Company's
independent certified public accountants and counsel (including, without
limitation, with respect to "comfort" letters and opinions) (collectively, the
"Registration Expenses") shall be borne by the Company; provided, however, that
in the case of a Piggyback Registration, all incremental costs resulting from
applicable federal and blue sky registration and filing fees, National
Association of Securities Dealers filing fees, the expenses and fees for listing
the securities to be registered on each securities exchange and included in each
established over-the-counter market on which similar securities issued by the
Company are then listed or traded or for listing on Nasdaq and underwriting
discounts and commissions allocable to each Stockholder selling Registrable
Securities shall be borne by such Stockholder. The Company shall be responsible
for the fees and expenses of one (1) legal counsel retained by all of the
Stockholders in the aggregate in connection with the sale of Registrable
Securities. Notwithstanding the foregoing, the Company shall not be responsible
for the fees and expenses of any additional counsel, or any of the accountants,
agents or experts retained by the Stockholders in connection with the sale of
Registrable Securities. The Company will 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 and the
expense of any liability insurance) (collectively, "Internal Expenses") and the
expenses and fees for listing the securities to be registered on each securities
exchange and included in each established over-the-counter market on which
similar securities issued by the Company are then listed or traded or for
listing on Nasdaq.
Section 5.07. Indemnification.
(a) By the Company. The Company agrees to indemnify, to the
fullest extent permitted by law, each holder of Registrable Securities being
sold, its officers, directors, employees and agents and each Person who controls
(within the meaning of the Securities Act) such holder or such an other
indemnified Person against all losses, claims, damages, liabili- ties and
expenses (collectively, the "Losses") caused by, resulting from or relating to
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 any omission or alleged omission of a material
fact required to be stated therein or a fact necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished to the Company by 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 and without limiting any of
the Company's other obligations under this Agreement, the Company shall
indemnify such underwriters, their officers, directors, employees and agents and
each Person who controls (within the meaning of the Securities Act) such
underwriters or such an other indemnified Person to the same extent as provided
above with respect to the indemnification of the holders of Registrable
Securities being sold.
(b) By Stockholders. 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 information regarding such
holder's ownership of Registrable Securities and its intended method of
distribution thereof and, to the extent permitted by law, shall indemnify the
Company, its directors, officers, employees and agents and each Person who
controls (within the meaning of the Securities Act) the Company or such an other
indemnified Person against all Losses caused by, resulting from or relating to
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 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
caused by and contained in such information so furnished in writing by such
holder; provided, however, that each holder's obligation to indemnify the
Company hereunder shall be apportioned between each holder based upon the net
amount received by each holder from the sale of Registrable Securities, as
compared to the total net amount received by all of the holders of Registrable
Securities sold pursuant to such registration statement, no such holder being
liable to the Company in excess of such apportionment.
(c) Notice. Any Person entitled to indemnification hereunder
shall give prompt written notice to the indemnifying party of any claim with
respect to which its seeks indemnification; provided, however, the failure to
give such notice shall not release the indemnifying party from its obligation,
except to the extent that the indemnifying party has been materially prejudiced
by such failure to provide such notice.
(d) Defense of Actions. In any case in which any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof the indemnifying party will not (so long as it shall
continue to have the right to defend, contest, litigate and settle the matter in
question in accordance with this paragraph) be liable to such indemnified party
hereunder for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, supervision and monitoring (unless such indemnified
party reasonably objects to such assumption on the grounds that there may be
defenses available to it which are different from or in addition to the defenses
available to such indemnifying party, in which event the indemnified party shall
be reimbursed by the indemnifying party for the expenses incurred in connection
with retaining separate legal counsel). An indemnifying party shall not be
liable for any settlement of an action or claim effected without its consent.
The indemnifying party shall lose its right to defend, contest, litigate and
settle a matter if it shall fail to diligently contest such matter (except to
the extent settled in accordance with the next following sentence). No matter
shall be settled by an indemnifying party without the consent of the indemnified
party (which consent shall not be unreasonably withheld).
(e) Survival. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified Person and will survive the transfer of
the Registrable Securities and the termination of this Agreement.
(f) Contribution. If recovery is not available under the
foregoing indemnification provisions for any reason or reasons other than as
specified therein, any Person who would otherwise be entitled to indemnification
by the terms thereof shall nevertheless be entitled to contribution with respect
to any Losses with respect to which such Person would be entitled to such
indemnification but for such reason or reasons. In determining the amount of
contribution to which the respective Persons are entitled, there shall be
considered the Persons' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and other equitable
considerations appropriate under the circumstances. It is hereby agreed that it
would not necessarily be equitable if the amount of such contribution were
determined by pro rata or per capita allocation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation. Notwithstanding the foregoing, no Stockholder
shall be required to make a contribution in excess of the net amount received by
such holder from the sale of Registrable Securities.
ARTICLE VI
Miscellaneous
(a) Legends. Each of the Stockholders agrees that substantially
the following legends shall be placed on the certificates representing any
Shares owned by them:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
COMPLIES WITH THE PROVISIONS OF A STOCKHOLDERS AGREEMENT DATED AS OF JULY
2, 1996, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF XXXXX WHEELS
INTERNATIONAL, INC. AND IS AVAILABLE WITHOUT CHARGE UPON WRITTEN REQUEST
THEREFOR. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF THE AFORESAID
AGREEMENT.
The Company agrees to remove the legend on the Shares upon the resale of such
Shares in accordance with the terms of this Agreement (other than pursuant to
Section 4.01(a)(i) and Section 4.01(b)(iii) hereof).
(b) Specific Performance. Each of the Stockholders acknowledges
and agrees that in the event of any breach of this Agreement, the non-breaching
party or parties would be irreparably harmed and could not be made whole by
monetary damages. The Stockholders hereby agree that in addition to any other
remedy to which they may be entitled at law or in equity, they shall be entitled
to compel specific performance of this Agreement in any action instituted in any
court of the United States or any state thereof having subject matter
jurisdiction for such action.
(c) Headings. The headings in this Agreement are for convenience
of reference only and shall not control or affect the meaning or construction of
any provisions hereof.
(d) Entire Agreement. This Agreement and the Subscription
Agreement constitute the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein, and there are no
restrictions, promises, representations, warranties, covenants, conditions or
undertakings with respect to the subject matter hereof, other than those
expressly set forth or referred to herein. This Agreement and the Subscription
Agreement supersede all prior agreements and understandings between the parties
hereto with respect to the subject matter hereof.
(e) Proxy. For so long as this Agreement is in effect, if any
Stockholder fails or refuses to vote that Stockholder's Shares pursuant to this
Agreement, then, without further action by such Stockholder, each other
Stockholder shall have an irrevocable proxy coupled with an interest to vote
such Stockholder's Shares in accordance with this Agreement, and each
Stockholder hereby grants to the other Stockholders such irrevocable proxy
coupled with an interest.
(f) Notices. All notices and other communications hereunder shall
be in writing and shall be delivered personally or by next-day courier or
telecopied with confirmation of receipt, to the parties at the addresses
specified below (or at such other address for a party as shall be specified by
like notice; provided that notices of change of address shall be effective only
upon receipt thereof). Any such notice shall be effective upon receipt, if
personally delivered or telecopied, or one day after delivery to a courier for
next-day delivery.
If to the Company, to:
Xxxxx Wheels International, Inc.
00000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
With copies to:
Xxxxx Wheels International, Inc.
00000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Telecopier: (000) 000-0000
and
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
Telecopier: (000) 000-0000
If to JLL, to:
Xxxxxx Xxxxxxxxxx & Levy
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx
Telecopier: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esquire
Telecopier: (000) 000-0000
If to Nomura, to:
Nomura Holding America, Inc.
Two World Xxxxxxxxx Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
If to TSG, to:
TSG Capital Fund II, L.P.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
Telecopier: (000) 000-0000
If to Argosy, to:
CIBC WG Argosy Merchant Fund II, LLC
1325 Avenue of the Americas
22nd Floor
New York, New York 10019
Attention: Xxx Xxxxx
Telecopier: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esquire
Telecopier: (000) 000-0000
If to Chase, to:
Chase Capital Partners
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
With a copy to:
X'Xxxxxxxx, Xxxxxx & Karabell
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Soydam, Esquire
Telecopier: (000) 000-0000
(g) Applicable Law. The substantive laws of the State of New York
shall govern the interpretation, validity and performance of the terms of this
Agreement, regardless of the law that might be applied under applicable
principles of conflicts of laws.
THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES
HEREUNDER; ALL SUCH DISPUTES SHALL BE SETTLED BY BINDING ARBITRATION PURSUANT TO
THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION IN NEW YORK CITY, NEW YORK AND
THE ORDER OF SUCH ARBITRATORS SHALL BE FINAL AND BINDING ON ALL PARTIES HERETO
AND MAY BE ENTERED AS A JUDGMENT IN A COURT HAVING JURISDICTION OVER THE
PARTIES.
(h) Severability. The invalidity, illegality or unenforceability
of one or more of the provisions of this Agreement in any jurisdiction shall not
affect the validity, legality or enforceability of the remainder of this
Agreement in such jurisdiction or the validity, legality or enforceability of
this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
(i) Successors; Assigns. The provisions of this Agreement shall
be binding upon the parties hereto and their respective heirs, successors and
permitted assigns. Neither this Agreement nor the rights or obligations of any
Stockholder hereunder may be assigned, except in connection with the transfer by
a Stockholder of shares of New Company Common Stock to a Permitted Transferee.
Any such attempted assignment in contravention of this Agreement shall be void
and of no effect.
(j) Amendments. This Agreement may not be amended, modified or
supplemented unless such modification is in writing and signed by the Company
and the holders of at least 82.5% of the Shares outstanding on the date hereof
less any Shares subsequently Transferred other than to a Person described in
clauses (i) or (ii) of the definition of a Permitted Transferee.
(k) Waiver. Any waiver (express or implied) of any default or
breach of this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
(l) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
(m) Recapitalization. In the event that any capital stock or
other securities are issued in respect of, in exchange for, or in substitution
of, any shares of New Company Common Stock by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of New Company Common Stock or any
other change in the Company's capital structure, appropriate adjustments shall
be made to the terms hereof if necessary to fairly and equitably preserve the
original rights and obligations of the parties hereto under this Agreement.
(n) Termination. Unless terminated earlier pursuant to the terms
contained herein, this Agreement shall terminate on the eighth anniversary of
the date hereof.
IN WITNESS WHEREOF, the undersigned hereby agrees to be bound by
the terms and provisions of this Stockholders Agreement as of the date first
above written.
XXXXX WHEELS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President & General
Counsel
XXXXXX XXXXXXXXXX & XXXX FUND II, L.P.
By: JLL ASSOCIATES II, L.P.,
its General Partner
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: General Partner
CHASE EQUITY ASSOCIATES, a
California Limited Partnership
By: CHASE CAPITAL PARTNERS,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: /s/ Xxx Xxxxx
-------------------------------------
Name: Xxx Xxxxx
Title:
NOMURA HOLDING AMERICA, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Executive Managing Director
TSG CAPITAL FUND II, L.P.
By: TSG ASSOCIATES II, L.P.,
its General Partner
By: TSG ASSOCIATES II, INC.,
its General Partner
By: /s/ Cleveland A. Xxxxxxxxxx
-------------------------------------
Name: Cleveland A. Xxxxxxxxxx
Title: President
AMENDMENT NO. 1
TO
STOCKHOLDERS' AGREEMENT
This AMENDMENT NO. 1 to Stockholders' Agreement, is dated as of April
8, 1997 and is by and among Xxxxx Wheels International, Inc., a Delaware
corporation (the "Company"), Xxxxxx Xxxxxxxxxx & Levy Fund II, L.P., a Delaware
limited partnership ("JLL"), Chase Equity Associates, a California limited
partnership ("Chase"), CIBC WG Argosy Merchant Fund 2, L.L.C., a Delaware
limited liability company ("Argosy"), Nomura Holding America, Inc., a Delaware
corporation ("Nomura"), and TSG Capital Fund II, L.P., a Delaware limited
partnership ("TSG") (JLL, Chase, Argosy, Nomura and TSG, each being referred to
herein as a "Stockholder" and collectively being referred to herein as the
"Stockholders"). Capitalized terms used but not otherwise defined shall have the
respective meanings set forth in the Stockholders' Agreement (as defined below).
W I T N E S S E T H
WHEREAS, the Stockholders are parties to that certain Stockholders'
Agreement, dated as of July 2, 1996 (the "Stockholders' Agreement"), relating to
shares of common stock, par value $.01 per share, of the Company.
WHEREAS, under the terms of the Stockholders' Agreement, Argosy is
entitled to appoint a non-voting representative to attend meetings of the
Company's Board of Directors.
WHEREAS, the Stockholders are desirous of amending the Stockholders'
Agreement to permit Argosy to designate a representative as a voting member of
the Company's Board of Directors.
NOW THEREFORE, in consideration of good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. Section 3.01(a) of the Stockholders' Agreement is hereby
amended in its entirety to read as follows:
(a) Members. During the term of this Agreement, each of JLL,
TSG, Nomura and Argosy will use their best efforts to cause
the Board of Directors of the Company (the "Board") to
consist of nine (9) members, of which: (i) four members
shall be designees of JLL; (ii) one member shall be a
designee of TSG; (iii)
one member shall be a designee of Argosy; (iv) one member
shall be the Chief Executive Officer of the Company; and (v)
the other two members shall be determined by the Board;
provided, however, such members determined by the Board
shall not be affiliated with the Company or any of the
Stockholders. During the term of this Agreement, the Company
shall use its best efforts and shall exercise all authority
under applicable law to cause to be elected or appointed, as
the case may be, as directors of the Company a slate of
directors consisting of individuals meeting the requirements
of the previous sentence.
2. The last sentence of Section 4.01(b) is hereby amended in its
entirety to read as follows:
Notwithstanding anything stated herein to the contrary, the
Transfer of Shares by any of JLL, TSG or Argosy shall not result in
the assignment of such transferring Stock- holder's rights under
Section 3.01(a) hereof.
3. Except as specifically amended hereby, the Stockholders'
Agreement shall continue and remain in full force and effect in
accordance with its terms. From and after the date hereof, all
references in the Stockholders' Agreement to the "Agreement,"
"hereunder," "hereof," "herein," or words of similar import shall mean
and be a reference to the Stockholders' Agreement as amended by this
Amendment No. 1.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned hereby agrees to be bound by
the terms and provisions of this Amendment No. 1 to the Stockholders'
Agreement as of the date first above written.
XXXXX WHEELS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX XXXXXXXXXX & LEVY FUND II, L.P.
By: JLL ASSOCIATES II, L.P.,
its General Partner
By: /s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
Title: General Partner
CHASE EQUITY ASSOCIATES, a
California Limited Partnership
By: CHASE CAPITAL PARTNERS,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Partner
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Member
NOMURA HOLDING AMERICA, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
TSG CAPITAL FUND II, L.P.
By: TSG ASSOCIATES II, L.P.,
its General Partner
By: TSG ASSOCIATES II, INC.,
its General Partner
By: /s/ Cleveland A. Xxxxxxxxxx
-------------------------------
Name: Cleveland A. Xxxxxxxxxx
Title: President
