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Exhibit 4.g
SHAREHOLDERS AGREEMENT
BY AND AMONG
MASCOTECH, INC.
MASCO CORPORATION
XXXXXXX XXXXXXXXX
XXXXXXX AND XXXX XXXXXXXXX FOUNDATION
THE HEARTLAND ENTITIES LISTED ON THE
SIGNATURE PAGES HERETO
THE HIP CO-INVESTORS LISTED ON THE SIGNATURE PAGES HERETO
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DATED AS OF NOVEMBER 28, 2000
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Definitions............................................................................ 1
SECTION 1.02. Rules of Construction.................................................................. 10
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Authority; Enforceability.............................................................. 10
SECTION 2.02. No Breach.............................................................................. 10
SECTION 2.03. Consents............................................................................... 11
SECTION 2.04. Share Ownership........................................................................ 11
ARTICLE III
SHARE TRANSFERS
SECTION 3.01. Restrictions on Transfer............................................................... 12
SECTION 3.02. Exceptions to Restrictions............................................................. 12
SECTION 3.03. Improper Transfer...................................................................... 13
SECTION 3.04. Restrictive Legend..................................................................... 13
ARTICLE IV
RIGHTS OF CERTAIN SHAREHOLDERS
SECTION 4.01. Rights of First Offer.................................................................. 13
SECTION 4.02. Tag-Along Rights....................................................................... 15
SECTION 4.03. Drag-Along Rights...................................................................... 17
SECTION 4.04. Information............................................................................ 17
SECTION 4.05. Preemptive Rights...................................................................... 20
SECTION 4.06. Board of Directors..................................................................... 23
SECTION 4.07. Right to Observer...................................................................... 24
SECTION 4.08. Consultation Right..................................................................... 25
SECTION 4.09. Approval Rights........................................................................ 25
SECTION 4.10. Transactions with Affiliates........................................................... 26
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ARTICLE V
REGISTRATION RIGHTS
SECTION 5.01. Company Registration................................................................... 27
SECTION 5.02. Demand Registration Rights............................................................. 28
SECTION 5.03. Registration Procedures................................................................ 31
SECTION 5.04. Registration Expenses.................................................................. 36
SECTION 5.05. Indemnification........................................................................ 37
SECTION 5.06. 1934 Act Reports....................................................................... 39
SECTION 5.07. Holdback Agreements.................................................................... 39
SECTION 5.08. Participation in Registrations......................................................... 40
SECTION 5.09. Remedies............................................................................... 41
SECTION 5.10. Other Registration Rights.............................................................. 41
SECTION 5.11. Rule 144............................................................................... 41
ARTICLE VI
RIGHTS OF HOLDERS OF CLASS A PREFERRED STOCK
SECTION 6.01. Series A Preferred Stock............................................................... 41
SECTION 6.02. Management Fee......................................................................... 42
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Notices................................................................................ 42
SECTION 7.02. Binding Effect; Benefits; Entire Agreement............................................. 42
SECTION 7.03. Waiver................................................................................. 42
SECTION 7.04. Amendment.............................................................................. 43
SECTION 7.05. Assignability.......................................................................... 43
SECTION 7.06. Applicable Law......................................................................... 43
SECTION 7.07. Specific Performance................................................................... 43
SECTION 7.08. Severability........................................................................... 44
SECTION 7.09. Additional Securities Subject to Agreement............................................. 44
SECTION 7.10. Name Change............................................................................ 44
SECTION 7.11. Section and Other Headings............................................................. 44
SECTION 7.12. Counterparts........................................................................... 44
SECTION 7.13. Termination of Certain Provisions...................................................... 44
SECTION 7.14. ERISA Matters.......................................................................... 45
SECTION 7.15. Regulatory Cooperation................................................................. 45
SECTION 7.16. Publicity.............................................................................. 45
SECTION 7.17. Expenses............................................................................... 45
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SHAREHOLDERS AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of November 28,
2000, by and among MASCOTECH, INC. a Delaware corporation (the "Company"),
Xxxxxxx Xxxxxxxxx ("IS"), the Xxxxxxx and Xxxx Xxxxxxxxx Foundation ("Foundation
Shareholder" and, together with IS, "RM"), MASCO CORPORATION, a Delaware
corporation (together with RM, the "Rollover Investors"), the HEARTLAND ENTITIES
(as defined herein), LONG POINT CAPITAL FUND, L.P. and LONG POINT CAPITAL
PARTNERS L.L.C. (collectively "Long Point"), CRM 1999 ENTERPRISE FUND, LLC
("Xxxxxx" and with Long Point collectively the "Masco Transferees" or
individually as a "Masco Transferee") and the entities identified as HIP
CO-INVESTORS on the signature pages hereof (the HIP Co-Investors (including,
without limitation, the Masco Transferees), the Rollover Investors, Sponsor and
each Person executing a Joinder Agreement are collectively referred to herein as
the "Shareholders" and individually as a "Shareholder").
WHEREAS, the Company and Riverside Acquisition Corporation
(formerly Riverside Company LLC), a Delaware corporation ("Riverside") and an
affiliate of Sponsor, have entered into a Recapitalization Agreement, dated as
of August 1, 2000, as amended by Amendment No. 1 thereto, dated as of October
23, 2000, and Amendment No. 2 thereto, dated as of November 28, 2000 (the
"Recapitalization Agreement"), which provides for, among other things, the
merger of Riverside with and into the Company (the "Recapitalization Merger").
WHEREAS, as a result of and in connection with the
Recapitalization Merger, each Shareholder will own the number of shares of
common stock of the Company, $1.00 par value (the "Common Stock"), set forth on
Schedule 2.04 hereto and Company Shareholder will own 361,001 shares of class A
preferred stock of the Company, $1.00 par value (the "Class A Preferred Stock").
WHEREAS, the parties hereto desire to enter into this
agreement to provide for certain rights and restrictions with respect to the
Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties mutually agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Definitions. The following terms, as used
herein, have the following meanings:
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"ADJUSTMENTS" means adjustments to the number of shares of
Common Stock outstanding as a result of a stock split, stock dividend,
reclassification, subdivision or reorganization, recapitalization or similar
event.
"ADVICE" see Section 5.03(p).
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"AGREEMENT" see the recitals to this Agreement.
"ASSIGNEE" see Section 4.01(c).
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the City of New
York are authorized or obligated by law or executive order to close.
"CAPITAL STOCK" means, with respect to any Person, except as
otherwise provided in Section 4.05, any and all shares, interests,
participations, rights in or other equivalents (however designated) of such
Person's capital stock, and any rights (other than debt securities convertible
into capital stock), warrants or options exchangeable for or convertible into
such capital stock.
"CLASS A PREFERRED STOCK" see the recitals to this Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" see the recitals to this Agreement.
"COMPANY" see the recitals to this Agreement.
"COMPANY OPTION PERIOD" see Section 4.01(b).
"COMPANY SHAREHOLDER" means Masco Corporation, a Delaware
corporation, provided that upon the transfer of all of Masco Corporation's
shares of Common Stock to Masco Capital Corporation, a wholly-owned subsidiary
of Masco Corporation, Masco Capital Corporation shall also be deemed Company
Shareholder for all purposes of this Agreement; provided that Masco Capital
Corporation executes a Joinder Agreement.
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"CSFB" means, collectively, the CSFB Plan Partner and the CSFB
Funds, or the CSFB Plan Partner acting on behalf of such other Persons.
"CSFB DIRECTOR" see Section 4.06(a)(ii)(c).
"CSFB FUNDS" means, collectively, Credit Suisse First Boston
Equity Partners (Bermuda), L.P., Credit Suisse First Boston U.S. Executive
Advisors, L.P., EMA Partners Fund 2000, L.P. and EMA Private Equity Fund 2000,
L.P.
"CSFB PLAN PARTNER" means Credit Suisse First Boston Equity
Partners, L.P.
"DEMAND HOLDERS" means any of Company Shareholder (on behalf
of itself and its Direct Permitted Transferees), RM (on behalf of himself,
itself and his or its Direct Permitted Transferees), a QI Demand Holder (on
behalf of itself and its Direct Permitted Transferees), CSFB (on behalf of
itself and its Direct Permitted Transferees and other Transferees to the extent
permitted by Section 5.02(g)) or Sponsor (on behalf of itself and its Direct
Permitted Transferees).
"DEMAND REGISTRATION" see Section 5.02(a).
"DIRECT PERMITTED TRANSFEREE" means:
(i) with respect to any Shareholder who is a natural person, (1) the
spouse or any lineal descendant (including by adoption and
stepchildren) of such Shareholder, (2) any trust of which such
Shareholder is the trustee and which is established solely for the
benefit of any of the foregoing individuals or (3) any partnership, all
of the general partner(s) and limited partner(s) (if any) of which are
one or more Persons identified in this clause (i);
(ii) with respect to Sponsor, any Affiliate of Sponsor;
(iii) with respect to Company Shareholder, any controlled Affiliate of
Company Shareholder (including any wholly-owned subsidiary of Company
Shareholder);
(iv) with respect to any Institutional Shareholder, any Affiliate of
such Institutional Shareholder;
(v) with respect to Foundation Shareholder, any Affiliate of Foundation
Shareholder;
(vi) with respect to MetLife, (a) any Affiliates of MetLife or (b)
Portfolio Advisors, LLC or any controlled Affiliate of Portfolio
Advisors, LLC; and
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(vii) with respect to any Shareholder, any institutional lender to
which such Shareholder pledges or grants a security interest in shares
of Common Stock in a bona fide transaction effected in good faith,
provided that (x) such pledgee executes a Joinder Agreement and (y)
prior to any subsequent foreclosure or sale of such shares or any
Transfer resulting from such foreclosure is effected, the provisions of
Section 4.01 must be satisfied.
"ELIGIBLE OFFERING" see Section 4.05(a).
"FIRST OPTION" see Section 4.01(b).
"FIRST UNION CAPITAL PARTNERS" means First Union Capital
Partners, LLC.
"FOUNDATION SHAREHOLDER" see the recitals to this Agreement.
"GAAP" means United States generally accepted accounting
principles consistently applied throughout the specified period.
"HEARTLAND ENTITIES" means Heartland Industrial Partners,
L.P., Heartland Industrial Partners (FF), L.P., Heartland Industrial Partners
(E1), L.P., Heartland Industrial Partners (K1), L.P., Heartland Industrial
Partners (C1), L.P. and Direct Permitted Transferees of any of the foregoing.
"HIP CO-INVESTOR" means (i) each Shareholder that is a limited
partner, or an Affiliate of a limited partner, in Sponsor or in any other fund
or investment vehicle established or managed by Sponsor or an Affiliate of
Sponsor, (ii) CSFB, (iii) each Masco Transferee and (iv) MetLife; provided that,
upon the Transfer by MetLife of all of its shares of Common Stock to Portfolio
Advisors, LLC or any controlled Affiliate of Portfolio Advisors, LLC in
accordance with Section 3.02(a) of this Agreement, Portfolio Advisors, LLC or
such controlled Affiliate of Portfolio Advisors, LLC shall be deemed to be a HIP
Co-Investor under this Agreement.
"HOLDER" means any Demand Holder or Incidental Demand Holder.
"INCIDENTAL DEMAND HOLDER" see Section 5.02.
"INITIAL PUBLIC OFFERING" means either (x) an underwritten
initial public offering of the Company pursuant to an effective registration
statement filed under the 1933 Act (excluding registration statements filed on
Form S-8, or any similar successor form or another form used for a purpose
similar to the intended use for such forms) or (y) the listing of the Common
Stock on a national securities exchange or authorization for quotation on the
Nasdaq National Market System.
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"INSTITUTIONAL SHAREHOLDER" means any Shareholder that is not
a natural person (other than Company Shareholder, Foundation Shareholder or
Sponsor).
"INVESTORS" see Section 4.01(a).
"INVESTOR'S NOTICE" see Section 4.01(a).
"IS" see the recitals to this Agreement.
"JOINDER AGREEMENT" means a joinder agreement, a form of which
is attached hereto as Exhibit A.
"MASCO TRANSFEREES" see the recitals to this Agreement.
"MATERIAL EVENT" see Section 4.09(a).
"METLIFE" means Metropolitan Life Insurance Company.
"1933 ACT" means the Securities Act of 1933.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended.
"OBSERVER" see Section 4.07.
"OFFERED SHARES" see Section 4.01(a).
"PERMITTED TRANSFEREE" means:
(i) with respect to any Shareholder who is a natural person, (1) the
spouse or any lineal descendant (including by adoption and
stepchildren) of such Shareholder, (2) any trust of which such
Shareholder is the trustee and which is established solely for the
benefit of any of the foregoing individuals, (3) any charitable
foundation selected by such Shareholder, or (4) any partnership, all of
the general partner(s) and limited partner(s) (if any) of which are one
or more Persons identified in this clause (i), provided that, in the
case of clauses (1), (2), (3) or (4), such Person executes a Joinder
Agreement;
(ii) with respect to Sponsor, (a) any investor in Sponsor or an
Affiliate of such investor in Sponsor or an investor in any fund or
other investment vehicle established or managed by Sponsor or any of
its controlled Affiliates or any other Person which is an Affiliate of
Sponsor on the date hereof, (b) any of the Shareholders and any of
their respective Affiliates, (c) any controlled Affiliate of Sponsor,
and (d) any investor in Sponsor that is an investment fund in
connection with a pro rata distribution of shares of Common Stock to
all investors in Sponsor at the time of the
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expiration or termination of the fund, provided that, in the case of
clauses (a), (b), (c) or (d), any such investor executes a Joinder
Agreement; and provided, further, that, in the case of these clauses
(a), (b) or (c) Transfers to such Persons would not cause Sponsor to
own, together with its Affiliates, a number of shares equal to less
than thirty percent (30%) of the outstanding shares of Common Stock of
the Company as of the date of any such Transfer;
(iii) with respect to Company Shareholder, any controlled Affiliate of
Company Shareholder (including any wholly-owned subsidiary of Company
Shareholder), provided that such Affiliate or wholly-owned subsidiary
executes a Joinder Agreement;
(iv) with respect to any Institutional Shareholder (other than
MetLife), (a) any Affiliate of such Institutional Shareholder, (b) any
investor of such Institutional Shareholder that is an investment fund
in connection with a pro rata distribution of shares of Common Stock to
all investors (a "Shareholder Investor" or collectively "Shareholder
Investors") in such Institutional Shareholder at the time of the
expiration or termination of the fund, or (c) any Person acquiring all
or substantially all of the investment portfolio of such Institutional
Holder; and provided, further, that, in the case of clause (a), (b) or
(c), all such investors execute a Joinder Agreement;
(v) with respect to Foundation Shareholder, any Affiliate of Foundation
Shareholder, provided such Affiliate executes a Joinder Agreement;
(vi) with respect to MetLife, (a) any Affiliate of MetLife, (b)
Portfolio Advisors, LLC or any controlled Affiliate of Portfolio
Advisors, LLC or (c) any Shareholder Investor of such Institutional
Shareholder that is an investment fund in connection with a pro rata
distribution to all Shareholder Investors of such Institutional
Shareholder at the time of the expiration or termination of the fund;
provided, further, that, in the case of clause (a), (b) or (c), such
investors execute a Joinder Agreement; and
(vii) with respect to any Shareholder, any institutional lender to
which such Shareholder pledges or grants a security interest in shares
of Common Stock in a bona fide transaction effected in good faith,
provided that (x) such pledgee executes a Joinder Agreement and (y)
prior to any subsequent foreclosure or sale of such shares or any
Transfer resulting from such foreclosure is effected, the provisions of
Section 4.01 must be satisfied.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government, a political subdivision or an agency or instrumentality thereof.
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"PIGGYBACK HOLDER" see Section 5.01(a).
"PIGGYBACK REGISTRATION" see Section 5.01(a).
"PROPORTIONATE PERCENTAGE" see Section 4.05(a).
"PRO RATA PORTION" means, with respect to shares of Common
Stock held by a Shareholder at any date of determination such number of shares
of Common Stock owned by such Shareholder as would result in such Shareholder
selling the same percentage of the total number of shares of Common Stock held
by such Shareholder in the Transfer subject to the applicable Transfer Notice
(the "Subject Sale") as the Sponsor Transferor sells in the Subject Sale
(assuming, with respect to the Transfer Notice, that all Shareholders have
exercised their Tag-Along Right).
"PUBLIC OFFERING" see Section 4.05(a)(i).
"PURCHASER" see Section 4.02(a).
"QI DEMAND HOLDER" means any Qualified Investor other than
CSFB.
"QUALIFIED INVESTOR" means a HIP Co-Investor who (x), together
with its Affiliates, at or prior to any date of determination, has made an
aggregate cash investment in Common Stock of the Company equal to at least $40.0
million (based upon the original cost of such investment) or (y) owns, together
with its Direct Permitted Transferees, at least 10% or more of the outstanding
shares of Common Stock of the Company at the date of determination. For purposes
of this definition and any other definitions containing thresholds for the
dollar amount of cash invested in Common Stock of the Company or the percentage
ownership of Common Stock of the Company, the cash investments and the
beneficial ownership of the CSFB Funds and the CSFB Plan Partner will be deemed
to be aggregated.
"QUALIFYING PUBLIC EQUITY OFFERING" means either (x) one or
more underwritten public offerings of common equity securities of the Company
pursuant to an effective registration statement filed under the 1933 Act
(excluding registration statements filed on Form S-8, or any similar successor
form) resulting in aggregate gross proceeds to the Company of $100,000,000 or
more or (y) the listing of the Common Stock on a national securities exchange or
authorization for quotation on the Nasdaq National Market System for which there
is a public float of least $100,000,000 held by non-Affiliates of the Company.
"RECAPITALIZATION AGREEMENT" see the recitals to this
Agreement.
"RECAPITALIZATION MERGER" see the recitals to this Agreement.
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"REGISTRABLE SECURITIES" shall mean any of (i) the shares of
Common Stock owned by any Shareholder at the time of determination and (ii) any
other securities issued or issuable with respect to the Common Stock by way of a
stock split, stock dividend, reclassification, subdivision or reorganization,
recapitalization or similar event. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the offering of such securities by the holder thereof
shall have been declared effective under the 1933 Act and such securities shall
have been disposed of by such holder pursuant to such registration statement,
(b) such securities have been sold to the public pursuant to Rule 144 (or any
similar provision then in force) promulgated under the 1933 Act, (c) except for
purposes of Section 5.02, such securities shall have been otherwise transferred
and new certificates for such securities not bearing a legend restricting
further transfer shall have been delivered by the Company or its transfer agent
and subsequent disposition of such securities shall not require registration or
qualification under the 1933 Act or any similar state law then in force or (d)
such securities shall have ceased to be outstanding.
"REGISTRATION" see Section 5.03.
"REPRESENTATIVES" means the officers, employees, directors and
agents of such Shareholder, including, representatives of its legal, accounting
and financial advisors.
"REQUEST NOTICE" see Section 5.02(a).
"REQUISITE INVESTORS" means (i) Company Shareholder for so
long as Company Shareholder either (a) has outstanding commitments or loans
under the Subordinated Loan Agreement, (b) owns, together with its Permitted
Transferees, $10.0 million or more in liquidation preference of Class A
Preferred Stock, or (c) owns, together with its Direct Permitted Transferees, at
least 1,571,569 shares (as adjusted for Adjustments) of Common Stock, (ii) RM,
(iii) CSFB (on behalf of itself and its Direct Permitted Transferees) and (iv)
HIP Co-Investors (other than CSFB) (on behalf of the HIP Co-Investors and their
Direct Permitted Transferees) owning a majority of the number of shares of
Common Stock owned by all HIP Co-Investors (other than CSFB) and their Direct
Permitted Transferees as a group at the applicable date of determination.
"RIVERSIDE" see the recitals to this Agreement.
"RM" see the recitals to this Agreement.
"ROLLOVER DEMAND HOLDERS" means Company Shareholder, RM and
their respective Direct Permitted Transferees.
"ROLLOVER INVESTORS" see the recitals to this Agreement.
"SECOND OPTION" see Section 4.01(c).
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"SENIOR CREDIT FACILITIES" means the Credit Agreement, dated
as of the date hereof, among The Chase Manhattan Bank, Chase Securities Inc.,
the Company and certain of its subsidiaries and the other lenders and financial
institutions party thereto from time to time, as the same may be amended,
modified, waived, refinanced or replaced from time to time (whether under a new
credit agreement or otherwise).
"SHAREHOLDERS" see the recitals to this Agreement.
"SIGNIFICANT SUBSIDIARY" means any subsidiary of the Company
that would be a "significant subsidiary" as such term is defined in Rule 1.02 of
Regulation S-X under the 1933 Act.
"SPONSOR" means collectively the Heartland Entities or
Heartland Industrial Partners, L.P. acting on behalf of the other Heartland
Entities.
"SPONSOR OPTION PERIOD" see Section 4.01(c).
"SUBORDINATED LOAN AGREEMENT" means the subordinated loan
agreement dated the date hereof between Company Shareholder and the Company.
"SUBSTANTIAL CHANGE OF CONTROL" means the sale, lease or
transfer in one or a series of related transactions of at least a majority of
the consolidated assets of the Company and its subsidiaries or a majority of the
Capital Stock of the Company representing the right to vote for directors to any
Person or "group" of Persons (other than Sponsor and its Affiliates) whether
direct or indirect or by way of any merger, consolidation or other business
combination or purchase of beneficial ownership or otherwise.
"TRANSACTIONS" means (i) the Recapitalization Merger and (ii)
all of the other transactions contemplated by the Recapitalization Agreement,
including the transactions contemplated by the subscription agreements to be
entered into in connection with the Recapitalization Merger.
"TRANSFER" means the direct or indirect offer, sale, donation,
assignment (as collateral or otherwise), pledge, hypothecation, encumbrance,
transfer or disposition of any security.
"TRANSFER NOTICE" see Section 4.02(a).
"TRANSFEREE" means any Person who acquires shares of Common
Stock from a Shareholder and who is not a Permitted Transferee.
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"TRIGGERING EVENT" means:
(i) with respect to a Rollover Demand Holder or CSFB, after
the earlier of (1) the fifth anniversary of the date hereof if an
Initial Public Offering has not been consummated by the fifth
anniversary of the date hereof and (2) 180 days after an Initial Public
Offering;
(ii) with respect to a QI Demand Holder, 180 days after an
Initial Public Offering; and
(iii) with respect to Sponsor, at any time.
SECTION 1.02. Rules of Construction. For purposes of this
Agreement whenever a threshold for the dollar amount of cash invested in Common
Stock of the Company or the percentage of ownership of Common Stock is to be
determined as to a Shareholder, the cash investments and the beneficial
ownership of Direct Permitted Transferees of such Shareholder shall be
aggregated with the cash investments and beneficial ownership of such
Shareholder and the cash investments and the beneficial ownership of the
Heartland Entities will be deemed to be aggregated.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each of the parties hereby severally represents and warrants
to each of the other parties as follows:
SECTION 2.01. Authority; Enforceability. Such party has the
legal capacity or corporate power and authority to enter into this Agreement and
to carry out its obligations hereunder. Such party (in the case of parties that
are not natural persons) is duly organized and validly existing under the laws
of its jurisdiction of organization, and the execution of this Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by all necessary action. No other act or proceeding, corporate or otherwise, on
its part is necessary to authorize the execution of this Agreement or the
consummation of any of the transactions contemplated hereby. This Agreement has
been duly executed by such party and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with the terms of this
Agreement, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the rights of creditors generally and to the
exercise of judicial discretion in accordance with general principles of equity
(whether applied by a court of law or of equity).
SECTION 2.02. No Breach. Neither the execution of this
Agreement nor the performance by such party of its obligations hereunder nor the
consummation of the transactions contemplated hereby or by the Transactions does
or will:
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(a) in the case of parties that are not natural persons,
conflict with or violate its certificate of incorporation, bylaws or
other organizational documents;
(b) violate, conflict with or result in the breach or
termination of, or otherwise give any other person the right to
accelerate, renegotiate or terminate or receive any payment or
constitute a default or an event of default (or an event which with
notice, lapse of time, or both, would constitute a default or event of
default) under the terms of, any contract or agreement to which it is a
party or by which it or any of its assets or operations are bound or
affected, including, in the case of the Company, the Senior Credit
Facilities or Subordinated Loan Agreement; or
(c) constitute a violation by such party of any laws, rules or
regulations of any governmental, administrative or regulatory authority
or any judgments, orders, rulings or awards of any court, arbitrator or
other judicial authority or any governmental, administrative or
regulatory authority.
SECTION 2.03. Consents. No consent, waiver, approval,
authorization, exemption, registration, license or declaration is required to be
made or obtained by such party, other than those which have been made or
obtained, in connection with (i) the execution or enforceability of this
Agreement or (ii) the consummation of any of the transactions contemplated
hereby or by the Transactions.
SECTION 2.04. Share Ownership. (a) The Company represents and
warrants that in the case of a Shareholder, such party will own, immediately
following the consummation of the transactions contemplated by the
Recapitalization Agreement, the number of shares of Capital Stock of the Company
set forth opposite such party's name in Schedule 2.04 attached hereto, free and
clear of any and all liens, claims and encumbrances, other than those created by
this Agreement.
(b) The Company represents and warrants that, as of the
date hereof after giving effect to the Transactions, the authorized capital
stock of the Company consists of (A) 250,000,000 shares of Common Stock, of
which 30,177,943 shares of Common Stock are issued and outstanding (without
giving effect to the restricted stock awards, whether or not vested, or shares
of Common Stock issuable to the former stockholders of K-Tech Mfg., Inc.
pursuant to documentation in existence prior to the Transactions), and (B)
25,000,000 shares of preferred stock, of which 361,001 shares of Class A
Preferred Stock are issued and outstanding. Without giving effect to any cash
elections or any accretion in respect of restricted stock awards after the date
of the Transactions and assuming full vesting of restricted stock awards granted
as of the date of the Transactions, there are approximately 3,741,325 shares of
Common Stock subject to restricted stock awards on the date hereof after giving
effect to the Transactions. The maximum number of shares of Common Stock
issuable to the former K-Tech Mfg., Inc. stockholders is not presently
determinable, but is estimated at up to approximately 550,000 shares of Common
Stock. Except (i) as provided for in this Agreement,
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(ii) for accretion in respect of restricted stock awards after the date hereof,
(iii) for Common Stock to be issued to former stockholders of K-Tech Mfg., Inc.
arising out of obligations existing prior to the Transactions, as of the date of
the Transactions, no subscription, warrant, option, convertible or exchangeable
security or other right to purchase or acquire any shares of Capital Stock of
the Company is authorized or outstanding and the Company has no obligation to
issue any subscription, warrant, option, convertible or exchangeable security or
other such right.
(c) The Company represents and warrants that the shares of
Common Stock issued to each Shareholder in connection with the Recapitalization
Merger were duly and validly authorized, and when issued to each Shareholder in
connection with the Recapitalization Merger will be duly and validly issued,
fully paid and non-assessable and such shares are not subject to preemptive or
similar rights except as provided by this Agreement.
(d) Each Shareholder hereby consents to and approves of the
contribution by the Company in connection with the Transactions of all of its
assets to Metalync Company LLC, its wholly-owned subsidiary, as required by the
Senior Credit Facilities.
ARTICLE III
SHARE TRANSFERS
SECTION 3.01. Restrictions on Transfer. During the term of
this Agreement, each Shareholder agrees that it will not Transfer any Common
Stock, except as permitted by or in accordance with this Agreement.
SECTION 3.02. Exceptions to Restrictions. Subject to all
applicable laws, the restrictions on Transfer set forth in Section 3.01 hereof
shall not apply to any of the following:
(a) a Transfer by a Shareholder of Common Stock to one of its
Permitted Transferees; provided that such Permitted Transferee shall
agree to execute a Joinder Agreement in the form annexed hereto as
Exhibit A (the "Joinder Agreement");
(b) a Transfer of Common Stock by a Shareholder in accordance
with Sections 4.02 and 4.03 of this Agreement;
(c) a Transfer by a Shareholder after such Shareholder has
complied with Section 4.01; provided that the Transferee shall agree to
execute a Joinder Agreement; and
(d) a Transfer of Common Stock by a Shareholder pursuant to an
effective registration statement under the 1933 Act or a Transfer
pursuant to Rule 144 under the 1933 Act.
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SECTION 3.03. Improper Transfer. Any attempt to Transfer any
shares of Common Stock not in accordance with this Agreement shall be null and
void and the Company will not give nor permit the Company's transfer agent to
give any effect to such attempted Transfer in its stock records.
SECTION 3.04. Restrictive Legend. Each certificate
representing shares of Common Stock and held by a Shareholder will bear a legend
substantially similar to the following (with such additions thereto or changes
therein as the Company may be advised by counsel are required by law or
necessary to give full effect to this Agreement):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE UNITED STATES SECURITIES ACT OF 1933 OR (ii) AN APPLICABLE
EXEMPTION FROM REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE
(ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
TERMS AND CONDITIONS, INCLUDING WITH RESPECT TO THE DIRECT OR INDIRECT
TRANSFER THEREOF, OF A SHAREHOLDERS AGREEMENT DATED AS OF NOVEMBER 28,
2000. THE SHAREHOLDERS AGREEMENT CONTAINS, AMONG OTHER THINGS,
SIGNIFICANT RESTRICTIONS ON TRANSFER OF THE SECURITIES OF THE COMPANY.
A COPY OF THE SHAREHOLDERS AGREEMENT IS AVAILABLE UPON REQUEST FROM THE
COMPANY."
ARTICLE IV
RIGHTS OF CERTAIN SHAREHOLDERS
SECTION 4.01. Rights of First Offer. (a) At any time or from
time to time prior to a Qualifying Public Equity Offering, in the event that (x)
at any time following the first anniversary of the date hereof (provided,
however, that, prior to the second anniversary of the date hereof, such Rollover
Investor does not in the good faith judgment of the Company jeopardize the
"recapitalization" accounting treatment afforded the Company in the
Recapitalization Merger), a Rollover Investor desires to Transfer, or (y) at any
time following the date hereof, a HIP Co-Investor desires to Transfer, all or
part of its Common Stock ("Offered Shares"), other than pursuant to Section
3.02(a), 3.02(d), 4.02 or 4.03 of this Agreement, such Rollover Investor or HIP
Co-Investor (individually, an "Investor") shall give prompt written
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notice (an "Investor's Notice") of its desire to sell the Offered Shares to the
Company and Sponsor. The Investor's Notice shall identify (i) the number of
Offered Shares and (ii) all other material terms and conditions of the proposed
Transfer including the purchase price and the form of the consideration.
(b) The Company shall have the right, but not the obligation,
to purchase all, but not less than all, the Offered Shares (the "First Option")
on the same terms and conditions as set forth in the Investor's Notice, which
option shall be exercised by delivering to such Investor irrevocable written
notice of its commitment to purchase the Offered Shares within fifteen (15)
business days after receipt of the Investor's Notice (the "Company Option
Period"). Failure by the Company to give such notice within such fifteen (15)
business day period shall be deemed an election by the Company not to purchase
the Offered Shares.
(c) In the event that the Company decides not to purchase the
Offered Shares pursuant to Section 4.01(b), then Sponsor shall have the right,
but not the obligation, to purchase all, but not less than all, the Offered
Shares (the "Second Option") on the same terms and conditions as set forth in
the Investor's Notice, which option shall be exercised by delivering to such
Investor irrevocable written notice of its commitment to purchase the Offered
Shares within ten (10) business days after the termination of the Company Option
Period (the "Sponsor Option Period"); provided that Sponsor may, at its sole
option, assign its rights to purchase an Investor's Offered Shares pursuant to
this Section 4.01 to another Shareholder or a Permitted Transferee of Sponsor
(such person an "Assignee"); provided that if the Assignee is a HIP Co-Investor,
each HIP Co-Investor will be able to participate in such assignment on a pro
rata basis. Failure by Sponsor or its Assignee to give such notice within such
ten (10) business day period shall be deemed an election by Sponsor or its
Assignee not to purchase the Offered Shares.
(d) Delivery of written notice by the Company, Sponsor or its
Assignee accepting the First Option or the Second Option, as the case may be,
shall constitute a contract between the Company, Sponsor or its Assignee, on the
one hand, and such Investor on the other hand, for the purchase and sale of the
Offered Shares on the terms and conditions set forth in the Investor's Notice.
The purchase of any shares pursuant to the exercise of the First Option or the
Second Option, as the case may be, shall be completed not later than forty-five
(45) days following receipt of the Investor's Notice with respect to the Offered
Shares, subject to receipt of any required material third-party or governmental
approvals, compliance with applicable laws and the absence of any injunction or
similar legal order preventing such transaction (collectively, the "Conditions")
in which case the purchase of the Offered Shares shall be delayed pending the
satisfaction of the Conditions up to an additional thirty (30) days. As a
condition to entering into the contract referred to above, the Company, Sponsor
and its Assignee will agree to use commercially reasonable efforts to satisfy
the Conditions as soon as possible. In the event that neither the First Option
nor the Second Option is exercised, the Investor shall have the right for a
period of seventy-five (75) days after the termination of the
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Sponsor Option Period to Transfer (the "Investor Sale") the Offered Shares at a
price not less than ninety percent (90%) of the price contained in, and
otherwise on terms and conditions no less favorable to such Investor than those
set forth in, the Investor's Notice, except that the purchase of the Offered
Shares may be delayed up to an additional thirty (30) days pending satisfaction
of the Conditions; provided that the Transferee agrees to execute a Joinder
Agreement. If the Investor Sale is not consummated pursuant to the terms of the
immediately preceding sentence, the Investor will not effect Transfer of any of
the Offered Shares without commencing de novo the procedures set forth in this
Section 4.01.
SECTION 4.02. Tag-Along Rights. (A) If, at any time or from
time to time prior to a Qualifying Public Equity Offering, Sponsor or any of its
Affiliates (the "Sponsor Transferor") proposes to Transfer any shares of Common
Stock to a Person (the "Purchaser"), other than pursuant to Section 3.02(a),
3.02(d), 5.01 or 5.02 or in a circumstance where all of the shares owned by all
of the Shareholders are being purchased pursuant to Section 4.03, the Sponsor
Transferor shall give written notice (a "Transfer Notice") of such proposed
Transfer to the Shareholders at least fifteen (15) days prior to the
consummation of such proposed Transfer, setting forth (A) the total number of
shares of Common Stock offered to be Transferred to Purchaser, (B) the
consideration to be received for such shares of Common Stock by the Sponsor
Transferor, (C) the identity of the Purchaser(s), (D) any other material terms
and conditions of the proposed Transfer, (E) the expected date of the proposed
Transfer and (F) that each such Shareholder shall have the right (the "Tag-Along
Right") to elect to sell up to its Pro Rata Portion of such shares of Common
Stock to be Transferred to Purchaser. If any portion of the consideration
contained in the Transfer Notice includes consideration other than cash, the
Sponsor Transferor shall provide the Shareholders with a summary of a valuation
study, if any, that the Sponsor Transferor has prepared concerning such
consideration, but the Sponsor Transferor shall have no liability to any
Shareholder with respect to any such summary or study and no obligation to
undertake any such valuation. Notwithstanding the first sentence of this Section
4.02(a), a Shareholder will have a Tag-Along Right in connection with Transfers
of shares of Common Stock by the Sponsor Transferor to a Permitted Transferee
(other than an Affiliate of the Sponsor Transferor) when the Sponsor Transferor
Transfers shares of Common Stock to such Person at a price per share (as
adjusted for Adjustments) that is greater than the price per share (as adjusted
for Adjustments) paid for such shares by the Sponsor Transferor.
(b) Upon delivery of a Transfer Notice, each Shareholder has
the option, but not the obligation, to sell up to the Pro Rata Portion of its
shares of Common Stock at the same price per share of Common Stock and pursuant
to the same terms and conditions with respect to payment for the shares of
Common Stock as agreed to by the Sponsor Transferor, by sending written notice
to the Sponsor Transferor within ten (10) days of the date of the Transfer
Notice, indicating its election to sell up to the Pro Rata Portion of its shares
of Common Stock in the same transaction. To the extent that elections pursuant
to this Section 4.02(b) are not made with respect to any shares of Common Stock
included in a Transfer
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Notice within such 10-day period, then the Sponsor Transferor shall re-offer to
Shareholders who have elected to sell their Pro Rata Portion (the "Tag-Along
Shareholders") for one additional three day period, the right to sell such
additional number of shares as will result in the Tag-Along Shareholders being
able to sell their pro rata share of such remaining shares of Common Stock,
based upon all the shares of Common Stock being sold by all the Tag Along
Shareholders (not including the remaining shares). For a sixty (60) day period
following such ten (10) day period (which period may be extended an additional
thirty (30) days in order to satisfy the Conditions), each Tag-Along Shareholder
shall be permitted to sell to the Purchaser(s) on the terms and conditions set
forth in the Transfer Notice that amount of its shares of Common Stock as to
which it has made its election and the Sponsor Transferor shall be permitted to
concurrently sell the balance of the shares of Common Stock that are the subject
of the Transfer Notice that are not sold by the Tag-Along Shareholders.
(c) The provisions of Section 4.02(a) and (b) shall not
apply to any Transfer or series of Transfers by Sponsor of shares of Common
Stock to one or more Persons other than Permitted Transferees which in the
aggregate do not exceed ten percent (10%) of such shares of Common Stock owned
by Sponsor immediately following the Transactions.
(d) Each Tag-Along Shareholder shall not be required to
make representations and warranties in connection with such sale other than
customary representations and warranties with respect to (i) such Shareholder's
due organization, power and authority, (ii) such Shareholder's ownership of the
shares of Common Stock and ability to freely convey such shares of Common Stock
without liens or encumbrances, (iii) customary representations regarding
non-contravention of such Shareholder's charter, bylaws or other organizational
documents or material agreements of such Tag-Along Shareholder and (iv) the
enforceable nature of such Tag-Along Shareholder's obligations under the
documents for such sale to which it is a party (collectively, the "Shareholder
Representations"). No Tag-Along Shareholder shall be liable in respect of any
indemnification provided in connection with a Tag-Along Sale (with respect to
such Shareholder's Shareholder Representations) in excess of the consideration
received by such Tag-Along Shareholder in such Tag-Along Sale and no Tag-Along
Shareholder shall be required to participate in any escrow relating to such
Tag-Along Sale in excess of such Tag-Along Shareholder's participation in the
Tag-Along Sale.
(e) In the event that no Shareholder elects to sell
shares of Common Stock pursuant to this Section 4.02, Sponsor and/or its
Affiliates (as the case may be) shall have the right for a period of
seventy-five (75) days (which period may be extended by an additional thirty
(30) days to satisfy the Conditions) after the expiration of the 10-day period
referred to in Section 4.02(b) to Transfer the Shares subject to the Transfer
Notice to the Purchaser at a price not greater than the price contained in, and
otherwise on terms and conditions no more favorable to Sponsor and/or such
Affiliates than those set forth in, the Transfer Notice; it being agreed that,
after the end of the 75-day period referred to in this Section 4.02(e)
(including any permitted extension thereof), Sponsor and/or such Affiliates will
not effect any
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transaction in any shares of Common Stock that are the subject of the Transfer
Notice without commencing de novo the procedures set forth in this Section 4.02.
SECTION 4.03. Drag-Along Rights. If at any time prior to a
Qualifying Public Equity Offering, Sponsor and its Affiliates intend to effect a
Substantial Change of Control, Sponsor shall have the right to require the other
Shareholders (the "Drag-Along Shareholders") to sell the same percentage of
Common Stock held by them relative to such Shareholder's ownership of Common
Stock as Sponsor and its Affiliates are selling in such transaction in
connection with such Substantial Change of Control; to vote such Common Stock,
whether by proxy, voting agreement or otherwise in favor of the transactions
constituting a Substantial Change of Control; to waive their appraisal or
dissenters' rights with respect to such transaction; or otherwise, participate
in such Substantial Change of Control and each other Shareholder agrees to take
any and all reasonably necessary action in furtherance of the foregoing;
provided that (a) the consideration to be received by the other Shareholders
shall be for the same type and amount per share of consideration received by
Sponsor, and (b) after giving effect to such transaction, Sponsor and its Direct
Permitted Transferees shall have sold the same percentage of their holdings of
Common Stock of the Company as sold by the Drag-Along Shareholders; provided,
however, that CSFB will not be obligated to participate in such transaction if
the consideration per share in such transaction is less than $16.90 per share
(as adjusted for Adjustments) of the Common Stock of the Company paid by CSFB in
connection with the Transactions and provided, further, that if Sponsor and its
Affiliates are selling all of their shares of Common Stock in connection with
such Substantial Change of Control, the Drag-Along Shareholders will be required
to sell all of their shares pursuant to this Section 4.03. In connection with
the sale of their shares of Common Stock pursuant to this Section 4.03, the
Drag-Along Shareholders shall not be required to make any representations and
warranties other than the Shareholder Representations. In addition, no
Drag-Along Shareholder shall be liable in respect of any indemnification in
connection with a transaction effected pursuant to this Section 4.03 (a
"Drag-Along Transaction") (with respect to such Shareholder's Shareholder
Representations) in excess of the consideration received by such Drag-Along
Shareholder in such Drag-Along Transaction and no such Drag-Along Shareholder
shall be required to participate in any escrow relating to such Drag-Along
Transaction in excess of such Drag-Along Shareholder's Pro Rata Portion.
SECTION 4.04. Information. (a) Prior to the occurrence of an
Initial Public Offering, the Company shall deliver to each Shareholder:
(1) as soon as available, but in any event within forty-five
(45) days after the end of each quarter, copies of:
(i) consolidated balance sheets of the Company and
its subsidiaries as at the end of such quarter, and
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(ii) consolidated statements of income, stockholders'
equity and cash flows of the Company and its subsidiaries, for
such quarter and for the portion of the fiscal year ending
with such quarter,
in each case prepared in accordance with GAAP applicable to periodic
financial statements generally, fairly presenting, in all material
respects, the financial position of the Persons being reported on and
their results of operations and cash flows, subject to changes
resulting from normal year-end adjustments;
(2) as soon as available, but in any event within ninety
(90) days after the end of each fiscal year of the Company, copies of:
(i) consolidated balance sheets of the Company and
its subsidiaries as at the end of such year, and
(ii) consolidated statements of income, stockholders'
equity and cash flows of the Company and its subsidiaries for
such year,
in each case prepared in accordance with GAAP, fairly presenting, in
all material respects, the financial position of the Persons being
reported on and their results of operations and cash flows, and
accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state
that such financial statements present fairly, in all material
respects, the financial position of the Persons being reported upon and
their results of operations and cash flows and have been prepared in
conformity with GAAP;
(b) In the case of any Shareholder (other than CSFB)
prior to the occurrence of a Qualifying Public Equity Offering, and for so long
as such Shareholder owns twenty-five percent (25%) or more of the number of
shares of Common Stock (as adjusted for Adjustments) owned by such Shareholder
immediately following the Transactions, or in the case of CSFB, for so long as
CSFB retains a number of shares of Common Stock equal to at least twenty-five
(25%) of the number of shares of Common Stock (as adjusted for Adjustments)
owned by CSFB immediately following the Transactions, the Company shall deliver
to each such Shareholder and CSFB:
(1) the information and reports provided pursuant to Sections
4.04(a)(1) and (2);
(2) monthly "flash reports" utilized by the Company in its own
management containing summarized, abbreviated data with respect to
income statement amounts, balance sheet data and cash flows; and
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(3) such other information concerning the condition or
operations, financial or otherwise, of the Company and its Subsidiaries
as a Shareholder may, from time to time, reasonably request.
(c) The rights to receive the information set forth in
subsections (1) and (2) of paragraph (a) shall be assignable to Transferees of
Common Stock. The rights to receive the information set forth in subsections (2)
and (3) of paragraph (b) shall be assignable to a Transferee that acquires from
CSFB at least 25% of the shares of Common Stock owned by CSFB as of the date
hereof (as adjusted for Adjustments).
(d) Prior to the occurrence of a Qualifying Public Equity
Offering, and for so long as a Shareholder owns twenty-five percent (25%) or
more of the number of shares of Common Stock owned by such Shareholder
immediately following the Transactions (as adjusted for Adjustments),
Representatives of such Shareholder shall be provided with a reasonable
opportunity to discuss the business and affairs of the Company with the
Company's senior managers, directors, officers and senior employees upon
reasonable advance notice during normal business hours; provided that such
Company representatives shall be available (A) to such Shareholder for an annual
meeting with senior management at which the following year's budget is presented
and (B) to Qualified Investors, RM and Company Shareholder for quarterly
meetings at which the most recent quarterly results are discussed.
(e) Each Shareholder hereby agrees that neither it nor
its Representatives will disclose to any third party any information provided to
it or its Representatives by the Company hereunder which is not generally
available to the public, except with the prior express approval of the Company
or as may be required by applicable law; it being understood that nothing in
this Section 4.04(e) will restrict the ability of Sponsor or a HIP Co-Investor
to disclose certain information to its investors in accordance with the
governing documents of their partnership arrangement; provided that such
investors agree to be bound by the confidentiality provisions of this Agreement.
(f) Notwithstanding the above, access to highly
confidential proprietary information and facilities need not be provided by the
Company, nor shall the Company be required to provide information to any
Shareholder that is a competitor or reasonably likely to become a competitor of
the Company or any of its subsidiaries; it being understood that the
Shareholders existing as of the date hereof are not competitors.
(g) Notwithstanding the foregoing, (x) MetLife in
addition to Portfolio Advisors, LLC or any controlled Affiliate of Portfolio
Advisors, LLC shall have the rights provided by this Section 4.04
notwithstanding the fact it has transferred all of its shares of Common Stock to
Portfolio Advisors, LLC or any controlled Affiliate of Portfolio Advisors, LLC,
provided such Person would have such rights as a Shareholder (it being agreed
that, solely for purposes of paragraphs (b) and (d) of this Section 4.04, such
Person shall be deemed to have held its shares of Common Stock since the
consummation of the
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Transactions) and (y) Company Shareholder shall be entitled to receive the
information provided by this Section 4.04 so long as Company Shareholder owns
any Class A Preferred Stock or has outstanding commitments or loans under the
Subordinated Loan Agreement.
SECTION 4.05. Preemptive Rights. (a) Prior to the occurrence
of an Initial Public Offering, the Company hereby grants and hereby agrees to
cause each Significant Subsidiary of the Company to grant to each HIP
Co-Investor and its Direct Permitted Transferees and Sponsor and its Direct
Permitted Transferees the right to purchase up to such Shareholder's
Proportionate Percentage (as hereinafter defined) of any future Eligible
Offering (as hereinafter defined) and in the case such Eligible Offering is in
whole or in part to Sponsor or any of its Affiliates, then the Company shall
also grant Company Shareholder and RM the right to purchase up to their
Proportionate Percentage. For purposes of this Section 4.05, the following terms
shall have the meanings set forth below.
"Proportionate Percentage" means, with respect to any
Shareholder as of any given date with respect to an Eligible Offering,
the lower of (i) twenty percent (20%) of such Eligible Offering or (ii)
the number (expressed as a percentage) obtained by dividing (A) the
number of shares of Common Stock owned by such Shareholder as of such
date by (B) the total number of shares of Common Stock outstanding as
of such date, in each case, assuming all shares of Capital Stock of the
Company convertible into or exercisable for Common Stock have been so
converted; provided that CSFB should not be limited by the foregoing
clause (i) in the event that the Eligible Offering consists of Capital
Stock of the Company for a consideration per share of Capital Stock
which is less than the purchase price per share of Common Stock paid by
CSFB in connection with the Transactions (as such price is adjusted by
the Adjustments).
"Eligible Offering" means an offer by the Company or a
Significant Subsidiary of the Company to sell to any Person or Persons
(including any of the Shareholders) for cash, any Capital Stock of the
Company or any Significant Subsidiary, other than an offering by the
Company or a Significant Subsidiary of the Company:
(i) of Common Stock in an underwritten public
offering (a "Public Offering") registered under the 1933 Act
or pursuant to a Rule 144A offering under the 1933 Act;
(ii) of Common Stock of the Company issued upon the
exercise of options, warrants or convertible securities
outstanding as of the date hereof;
(iii) of Common Stock of the Company or options to
purchase shares of Common Stock in connection with or pursuant
to any stock option, stock purchase plan or agreement or other
benefit plans approved by the Board of Directors of the
Company to full-time employees, officers, directors,
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consultants and/or advisors to the Company or its
subsidiaries;(excluding employees of Sponsor)
(iv) of Common Stock of the Company issued in
connection with restricted stock awards pursuant to and in
accordance with the Recapitalization Agreement;
(v) of Common Stock of the Company having a value of
up to $5.2 million in order to comply with Section 5.15 of the
Senior Credit Facilities;
(vi) of Capital Stock of the Company issued as
consideration to any seller in connection with the acquisition
by the Company or any subsidiary of the Company of the assets
of any Person in any transaction approved by the Board of
Directors of the Company;
(vii) of Capital Stock of the Company issued as an
inducement in connection with any debt financing of the
Company, subject to terms and conditions approved by the Board
of Directors of the Company;
(viii) of Capital Stock of a Significant Subsidiary of
the Company in connection with any sale of control of such
Significant Subsidiary to, or any joint venture between such
Significant Subsidiary and, a third party that is not a
financial sponsor or investor, which sale or joint venture is
approved by the Board of the Directors of the Company;
(ix) of director qualifying or similar shares of a
Significant Subsidiary;
(x) of Capital Stock of the Company issued as
consideration in connection with the acquisition by the
Company or any subsidiary of the Company of Xxxxxxx
Industries, Inc. or Global Metal Technologies, Inc. (or any
parent company thereof); and
(xi) of Capital Stock of the Company issued to former
stockholders of K-Tech Mfg., Inc. arising out of obligations
existing prior to the Transactions.
For purposes of this Section 4.05 only, "Capital Stock" means
any and all shares of common stock or options, warrants or similar instruments
or any other securities convertible or exchangeable therefor (collectively,
"Equity Interests") or any equity security linked to or offered or sold in
connection with any Equity Interests of such Person or any of its Significant
Subsidiaries, as the case may be.
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(b) The Company shall, before any securities are issued
pursuant to an Eligible Offering, give written notice (a "Preemptive Notice")
thereof to each Shareholder that is entitled to preemptive rights hereunder.
Such notice shall specify the security or securities proposed to be issued, the
proposed date of issuance, the consideration that the Company or such
Significant Subsidiary, as the case may be, intends to receive therefor and all
other material terms and conditions of such proposed issuance. For a period of
ten (10) business days following the date of such notice, each such Shareholder
shall be entitled, by written notice to the Company, to elect to purchase all or
part of such Shareholder's Proportionate Percentage of the securities being sold
in the Eligible Offering. To the extent that elections pursuant to this Section
4.05(b) shall not be made with respect to any shares of Common Stock included in
a Preemptive Notice within such 10-day period, then the Company shall re-offer
to Shareholders who have elected to purchase their Proportionate Percentage (the
"Preemptive Shareholders") for one additional three-day period, the right to
purchase any part of the shares of Common Stock not purchased by other
Shareholders (the "Section 4.05 Remaining Shares") pursuant to this Section 4.05
which is equal to the product obtained by multiplying (i) the number of Section
4.05 Remaining Shares by (ii) a fraction, the numerator of which is the number
of shares of Common Stock then owned by any such Preemptive Shareholder and the
denominator of which is the aggregate number of shares owned by all Preemptive
Shareholders. To the extent that elections pursuant to this Section 4.05(b)
shall not be made with respect to any securities included in an Eligible
Offering within such ten (10) business day period, then the Company or such
Significant Subsidiary, as the case may be, shall not be obligated to issue to
such Shareholder such securities for which such Shareholder has elected not to
purchase. To the extent that there are securities that have not been purchased
pursuant to this Section 4.05, then the Company or such Significant Subsidiary,
as the case may be, may issue such securities, but only for consideration not
less than, and otherwise on no less favorable terms to the Company or such
Significant Subsidiary, as the case may be, than, those set forth in the
Company's notice and only within thirty (30) days after the end of such ten (10)
business day period. In the event that any such offer is accepted by any such
Shareholder or Shareholders, the Company or such Significant Subsidiary, as the
case may be, shall sell to such Shareholder or Shareholders, and such
Shareholder or Shareholders shall purchase from the Company or such Significant
Subsidiary, as the case may be, for the consideration and on the terms set forth
in the notice as aforesaid, the securities that such Shareholder or Shareholders
shall have elected to purchase within ten (10) business days of such
Shareholder's election to purchase such Proportionate Percentage (subject to
delay for an additional thirty days for satisfaction of the Conditions).
(c) Each of the Shareholders granted rights pursuant to
this Section 4.05 acknowledges that it has been given the opportunity to
purchase their Proportionate Percentage of Common Stock in connection with the
acquisition of Xxxxxxx Industries, Inc. and accordingly this Section 4.05 shall
not apply to the acquisition of Xxxxxxx Industries, Inc.
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(d) The Company may comply with any applicable securities
laws before issuing any shares of Common Stock pursuant to this Section 4.05 and
shall not be in violation of the provisions hereof by reason of such compliance;
provided it is using commercially reasonable efforts to so comply.
SECTION 4.06. Board of Directors. (a) At each annual or
special stockholders meeting called for the election of directors, and whenever
the Shareholders of the Company act by written consent with respect to the
election of directors, each Shareholder agrees to vote or otherwise give such
Shareholder's consent in respect of all shares of the Capital Stock of the
Company (whether now owned or hereafter acquired) owned by such Shareholder, and
take all other appropriate action and the Company shall take all necessary and
desirable actions within its control in order to cause:
(i) an amendment to the Bylaws of the Company to provide that
the authorized number of directors on the Board of Directors of the
Company shall be as recommended by the Sponsor in its sole discretion.
(ii) the election to the Board of Directors of:
(a) such number of directors as shall constitute a
majority of the Board of Directors as designated by Heartland
Industrial Partners, L.P.;
(b) one director designated by the Company
Shareholder; provided, however, that except as set forth in
the immediately following sentence of this subpart (b) upon
Company Shareholder and its Direct Permitted Transferees
ceasing to own at least 1,571,569 shares of Common Stock or,
upon a Qualifying Public Equity Offering, Company Shareholder
shall no longer have the right to designate one director to
the Board. Notwithstanding the foregoing, Company Shareholder
shall maintain the right to designate one director to the
Board of Directors for so long as Company Shareholder or its
Affiliates, own (x) $10.0 million or more of liquidation
preference of the Class A Preferred Stock or (y) have
outstanding loans or unfunded commitments under the
Subordinated Loan Agreement; and
(c) one director designated by the CSFB Plan Partner
(the "CSFB Director") after consultation with Sponsor;
provided, however, that upon CSFB and its Direct Permitted
Transferees ceasing to own a number of shares of Common Stock
which would equal at least a majority of the shares of Common
Stock owned by CSFB immediately following the Transactions (as
adjusted for Adjustments), CSFB shall no longer have the right
to designate one director to the Board of Directors;
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all of which persons shall hold office subject to their earlier removal
in accordance with clause (iii) below, the Bylaws of the Company and
applicable corporate law, until their respective successors shall have
been elected and shall have qualified;
(iii) the removal from the Board of Directors (with or without
cause) of any director elected in accordance with subpart (a), (b) or
(c) of clause (ii) above upon the written request of the Shareholders
that designated such director; and
(iv) upon any vacancy in the Board of Directors as a result of
any individual designated as provided in clause (ii) above ceasing to
be a member of the Board of Directors whether by resignation or
otherwise, the election to the Board of Directors as promptly as
possible of an individual designated by the Shareholders that
designated such individual; provided that the CSFB Plan Partner will
consult with Sponsor prior to designating a replacement to serve as the
CSFB Director.
(b) The ability of a Shareholder to designate a director
to the Board of Directors shall not be assignable to any Person.
(c) The parties hereto agree to cause the Board of
Directors to appoint the CSFB Director to each decision making committee of the
Board and to cause such CSFB Director to be nominated to the Board of each
subsidiary of the Company to the extent the composition of such boards is
substantially identical to the composition of the Board.
(d) The Company agrees to provide customary directors'
liability insurance.
SECTION 4.07 Right to Observer. In the case of a Qualified
Investor (other than CSFB), for so long as such Qualified Investor retains a
number of shares of Common Stock equal to at least a majority of, or, in the
case of the CSFB Plan Partner, for so long as it retains a number of shares of
Common Stock equal to at least twenty-five percent (25%) of, the shares of
Common Stock owned by such Person immediately following the Transactions (as
adjusted for the Adjustments), such Person will have right to send one
Representative on its behalf (the "Observer") to attend all meetings of the
Board, including all committees thereof, solely in a non-voting observer
capacity. The Company will furnish to the Observer copies of all notices,
minutes, consents and other materials that it generally makes available to its
directors. The Observer may participate in discussions of matters under
consideration by the Board of the Company and any matters brought before any
committee thereof but will not be entitled to vote on any matter presented to
the Board of Directors. Any Qualified Investor and the CSFB Plan Partner will
have the right to remove and replace its Observer in its sole discretion and to
designate a substitute representative if its Observer is unable or unwilling to
attend any of the Board's meetings, including any committees thereof. The right
of Qualified Investors (other than CSFB) to appoint an Observer as set forth in
this Section 4.07 will terminate upon the occurrence of a Qualifying Public
Equity Offering.
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SECTION 4.08. Consultation Right. (a) The Company hereby
agrees to consult (a "Consultation") with the Representatives of the CSFB Plan
Partner set forth on Exhibit B hereto with respect (x) to any issues, events or
transactions pertaining to the Company which in the good faith judgment of the
Board of Directors of the Company are material to the consolidated business,
operations and financial condition of the Company and (y) to the preparation of
the annual business plan of the Company. In connection with any Consultation,
the Company will provide such Representatives with all material information
regarding any action under consideration and reasonable notice so that the
consultation period shall constitute sufficient time for the CSFB Plan Partner
to participate meaningfully in any decision-making process regarding the action
to be taken.
(b) The provision of Section 4.08(a) shall terminate upon
a Qualifying Public Equity Offering.
SECTION 4.09. Approval Rights. (a) The Company hereby agrees
not to enter into or adopt any Material Event (as defined below) without the
prior written approval of the majority of the Representatives of the CSFB Plan
Partner set forth on Exhibit B hereto, which approval with respect to clauses
(i) and (ii) of the definition of "Material Event" will not be unreasonably
withheld. For the purpose of this Section 4.09, "Material Event" means (i) any
agreement to acquire a business with a total enterprise value of $250.0 million
or more individually or any agreement to acquire a business if there have been
one or more agreements during the immediately preceding twelve (12) month period
for acquisitions(s) with a total enterprise value of $500.0 million or more (it
being hereby agreed by the parties that the acquisition of Global Metal
Technologies, Inc. shall be counted toward such $500.0 million threshold and
that the acquisition of Xxxxxxx Industries, Inc. shall not be counted toward
such threshold); (ii) the selection of a chief executive officer of the Company;
(iii) any restructuring of debt or other similar transaction pursuant to which
debt holders of the Company would hold twenty-five percent (25%) or more of the
outstanding Capital Stock of the Company; and (iv) any liquidation, dissolution,
winding-up of the affairs of the Company, whether voluntary or involuntary, or
the filing of a voluntary petition in bankruptcy or the filing of a plan of
reorganization. The Company hereby agrees to promptly give notice to the CSFB
Plan Partner if the Company is contemplating any Material Event. The CSFB Plan
Partner hereby agrees to notify the Company within ten (10) business days of the
receipt of such notice as to whether it approves of the Material Event. Failure
of the CSFB Plan Partner to notify the Company in writing within such ten (10)
business day period of its approval or disapproval of the Material Event shall
be deemed an approval by the CSFB Plan Partner of such Material Event.
(b) The provisions of Section 4.09(a) shall terminate
upon a Qualifying Public Equity Offering.
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SECTION 4.10. Transactions with Affiliates. Without the
consent of the Requisite Investors, for so long as Sponsor directly or
indirectly beneficially owns twenty percent (20%) or more of the outstanding
shares of Common Stock of the Company, the Company and its subsidiaries will not
enter into, or suffer to exist, any transaction with Sponsor or any of its
Affiliates involving payments or other consideration in excess of $1.0 million.
The foregoing restrictions will not apply to: (a) the payment of annual
monitoring fees to Sponsor in an amount not to exceed (x) $4.0 million plus
reimbursement of out-of-pocket expenses incurred by Sponsor in connection with
the advisory services provided to the Company for the first year after the date
hereof and (y) not to exceed 0.25% of the consolidated assets of the Company in
subsequent years; provided that such amount will not be less than $4.0 million
plus reimbursement of out-of-pocket expenses incurred by Sponsor in connection
with the advisory services provided to the Company; (b) the payment to Sponsor
of advisory fees and out-of-pocket expense reimbursement in connection with an
acquisition, divestiture or financing by the Company or any of its subsidiaries
(but excluding sales and purchases of personal property in the ordinary course
of business) provided that such fees shall be in an amount equal to 1% of the
aggregate value of such transaction; (c) fees payable to Sponsor in connection
with the Transactions and reimbursement of out-of-pocket expenses incurred by
Sponsor in connection with the Transactions; (d) transactions involving the
sale, purchase or lease of goods or services in the ordinary course of business
and on an arm's-length basis between or among the Company or any of its
subsidiaries and portfolio companies of Sponsor; (e) transactions between or
among the Company or any of its subsidiaries; (f) issuances of Capital Stock to
Sponsor and its Affiliates pursuant to, and in compliance with, Section 4.05;
and (g) issuances of Common Stock to Sponsor and other Shareholders, as
applicable (valued at $16.90 or more per share of Common Stock, unless otherwise
determined by the Board of Directors of the Company) for cash, or in exchange
for common stock, to provide for the acquisition by the Company or one of its
subsidiaries of all of the outstanding Capital Stock of Xxxxxxx Industries, Inc.
or Global Metal Technologies, Inc. (or any parent company thereof) either
initially or within one (1) year after the acquisition thereof by Sponsor or one
of its Affiliates (based on the cash equity provided by Sponsor and its
Affiliates at the closing of any such acquisition). Notwithstanding the
foregoing, the benefits of this Section 4.10 in favor of a class of Requisite
Investors (other than Company Shareholder) shall terminate as to it individually
when such class (including their respective Direct Permitted Transferees) ceases
to own a number of shares of Common Stock that would equal at least a majority
of the number of shares of Common Stock (appropriately adjusted for Adjustments)
owned by such class immediately following the Transactions. The benefits of this
Section 4.10 in favor of Company Shareholder will terminate as to Company
Shareholder when Company Shareholder (i) ceases to have outstanding commitments
or loans under the Subordinated Loan Agreement, (ii) owns, together with its
Direct Permitted Transferees, less than $10.0 million of liquidation preference
of Class A Preferred Stock and (iii) ceases to own, together with its Direct
Permitted Transferees, at least 1,571,569 shares of Common Stock.
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ARTICLE V
REGISTRATION RIGHTS
SECTION 5.01. Company Registration.
(a) Right to Piggyback on Registration of Stock. Subject
to Section 5.01(c), if at any time or from time to time the Company proposes to
register the Common Stock under the 1933 Act in connection with a public
offering (other than an Initial Public Offering consisting solely of primary
Common Stock or in connection with the registration of shares of Common Stock
issued to former shareholders of K-Tech Mfg., Inc. arising out of, or in lieu
of, obligations existing prior to the Transactions) of such Common Stock on any
form other than Form S-4 or Form S-8 or any similar successor forms or another
form used for a purpose similar to the intended use for such forms (a "Piggyback
Registration"), whether for its own account or for the account of one or more
shareholders of the Company, the Company shall each such time promptly give each
Shareholder written notice of such determination (in any event within 10
business days after its receipt of notice of any exercise of demand registration
rights); provided, however, that such notice of a Piggyback Registration shall
be given at least thirty (30) days prior to the anticipated filing date of such
Piggyback Registration. Upon the written request of any Shareholder (the
"Piggyback Holder") given within ten (10) business days after the providing of
any such notice by the Company, the Company shall use its best efforts to cause
to be registered under the 1933 Act all of the Registrable Securities held by
such Shareholder that the Shareholder has requested to be registered; provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Piggyback Holder and (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from any obligation of
the Company to pay the registration expenses in connection therewith); and (ii)
in the case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other securities. No registration effected under this Section
5.01 shall relieve the Company of its obligation to effect any registration upon
demand under Section 5.02. The registration rights contained in Section 5.01 may
be assigned to any Transferee or Permitted Transferee.
(b) Selection of Underwriters. If any Piggyback
Registration involves an underwritten primary offering, the Company shall have
sole discretion in the selection of any underwriter or underwriters to manage
such Piggyback Registration.
(c) Priority on Piggyback Registrations. In the event
that the Piggyback Registration includes an underwritten offering, the Company
shall so advise the Shareholders
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as part of the written notice given pursuant to Section 5.01(a) and the
registration rights provided in Section 5.01(a) shall be subject to the
condition that if the managing underwriter or underwriters of a Piggyback
Registration advise the Company in writing (a copy of which shall be provided to
the applicable Shareholders) that in its opinion the number of Registrable
Securities proposed to be sold in such Piggyback Registration exceeds the number
which can be sold, and would materially adversely affect the price at which the
Registrable Securities are to be sold, in such offering, the Company (or the
Shareholders, as the case may be) will include in such registration only the
number of Registrable Securities which, in the opinion of such underwriter or
underwriters can be sold in such offering without such material adverse effect.
The Registrable Securities so included in such Piggyback Registration shall be
apportioned (i) first, either (x) in the case of a primary registration on
behalf of the Company, to any shares of Common Stock that the Company proposes
to sell, or (y) in the case of a secondary registration on behalf of a
Shareholder, pro rata among the Holders on the basis of the number of
Registrable Securities requested to be registered pursuant to such Demand
Registration, (ii) second, pro rata among the Company Shareholder, RM and the
HIP Co-Investors (and their respective Permitted Transferees), but only to the
extent of shares of Common Stock of the Company held by them as of the date
hereof (as adjusted by the Adjustments), and (iii) third, pro rata among other
shares included in such Piggyback Registration, in each case according to the
total number of shares of the Common Stock requested for inclusion by said
selling stockholders, or in such other proportions as shall mutually be agreed
to among such selling stockholders.
SECTION 5.02. Demand Registration Rights.
(a) Right to Demand. At any time after a Triggering
Event, the Demand Holders may (subject in the case of Sponsor to Section 6.01),
individually or collectively, make a written request, which request will specify
the aggregate number of Registrable Securities to be registered and will also
specify the intended methods of disposition thereof (the "Request Notice") to
the Company for registration with the Commission under and in accordance with
the provisions of the 1933 Act of all or part of the Registrable Securities then
owned by Demand Holders (a "Demand Registration"); provided that the Company
may, if the Board of Directors so determines in the exercise of its reasonable,
good faith judgment that due to a pending or contemplated acquisition or
disposition or public offering or other material event involving the Company it
would be inadvisable to effect such Demand Registration at such time (but in no
event after such registration statement has become effective), the Company may,
upon providing the Demand Holders written notice (the "Delay Notice"), defer
such Demand Registration for a single period with respect to such Demand
Registration not to exceed one hundred thirty five (135) days. Upon receipt by
the Company of a request (a "Demand Request") to effect a Demand Registration
the Company will within 10 business days after the receipt of such notice,
notify each other Demand Holder of such request and such other Demand Holder
shall have the option to include its Registrable Securities in such Demand
Registration pursuant to this Section 5.02. Subject to Section 5.02(f), the
Company
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will register all other Registrable Securities which the Company has been
requested to register by such other Demand Holders (each an "Incidental Demand
Holder") pursuant to this Section 5.02 by written request given to the Company
by such holders within 10 business days after the giving of such written notice
by the Company to such other Demand Holders. The Company shall not be obligated
to maintain a registration statement pursuant to a Demand Registration effective
for more than (x) ninety (90) days or (y) such shorter period when all of the
Registrable Securities covered by such registration statement have been sold
pursuant thereto (the "Effectiveness Period"). Notwithstanding the foregoing,
the Company shall not be obligated to effect more than one Demand Registration
in any 90-day period or such longer period not to exceed 180 days as requested
by an underwriter pursuant to Section 5.07. Upon any such request for a Demand
Registration, the Company will deliver any notices required by Section 5.01 and
5.02 and thereupon the Company will, subject to Section 5.01(c) and 5.02(f)
hereof use its best efforts to effect the prompt registration under the 1933 Act
of:
(i) the Registrable Securities which the Company has been so
requested to register by Demand Holders as contained in the Request
Notice, and
(ii) all other Registrable Securities which the Company has
been requested to register by the Piggyback Holders and Incidental
Demand Holders,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or methods
of disposition of each seller of such Registrable Securities.
(b) Number of Demand Registrations. The Company shall not
be required to prepare and file a registration statement pursuant to this
Section 5.02 if (i) a Rollover Demand Holder and its Direct Permitted
Transferees cease to own at the time of making the Request Notice twenty-five
percent (25%) or more of the shares of Common Stock of the Company owned as of
the date hereof (as adjusted for Adjustments) and (ii) the Request Notice
relates to less than twenty-five percent (25%) of the shares of Common Stock
held by such Demand Holder. In addition, the Company will not be required to
effect more than (i) two registrations pursuant to this Section 5.02 on behalf
of Company Shareholder, (ii) one registration on behalf of RM pursuant to this
Section 5.02, (iii) two registrations on behalf of CSFB pursuant to this Section
5.02; provided that CSFB will be afforded one additional Demand Registration in
the event that CSFB has not been able to dispose of all of the Registrable
Securities requested to be registered by CSFB with its initial two Demand
Registrations; provided that the Company shall not be obligated to attend or
participate in any "road shows" if such third and final Demand Registration is
for less than 10% of the shares of Common Stock of the Company owned by CSFB
immediately following the Transactions (as adjusted for Adjustments and (iv) one
demand on behalf of the QI Demand Holders as a group (other than CSFB) pursuant
to this Section 5.02. Sponsor and its Affiliates will be entitled to an
unlimited number of Demand Registrations. It being understood that if two or
more Demand
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Holders make a collective Demand Registration, such Demand ( ) Registration
will count pursuant to this Section 5.02(b) as a Demand Registration for each
such Demand Holder. It is hereby acknowledged and agreed by the parties that any
Registrable Securities included in a registration statement on behalf of an
Incidental Demand Holder will not count as a Demand Registration for such
Incidental Demand Holder. In connection with a Demand Registration by more than
one Demand Holder or by a Demand Holder and Incidental Demand Holders, such
Demand Holders and Incidental Demand Holders shall elect one such Holder to act
as representative (the "DH Representative") in connection with such Demand
Registration and the Company shall only be obligated to communicate with such DH
Representative in connection with such Demand Registration. The Holders shall
give the Representative any and all necessary powers of attorneys needed for the
DH Representative to act on their behalf.
(c) Revocation. Holders of a majority in number of the
Registrable Securities to be included in a registration statement pursuant to
this Section 5.02 may, at any time prior to the effective date of the
registration statement relating to such Demand Registration, acting through
their DH Representative revoke such request by providing a written notice
thereof to the Company. The Holders of Registrable Securities who revoke such
request shall reimburse the Company for all its expenses incurred in the
preparation, filing and processing of the Registration Statement. If pursuant to
the terms of this Section 5.02(c), the Holders reimburse the Company for its
reasonable expenses incurred in the preparation, filing and processing of any
registration statement requested and subsequently revoked by such Holders, the
attempted registration by such requested and subsequently revoked registration
statement shall not be deemed to be a Demand Registration. Notwithstanding the
foregoing, the Holders of a majority in number of the Registrable Securities to
be included in a registration statement pursuant to this Section 5.02 may, at
any time within five days after receipt of any Delay Notice acting through their
DH Representative revoke such request by providing written notice thereof to the
Company and the attempted Demand Registration shall not be deemed to be a Demand
Registration, notwithstanding that such Holders shall not reimburse the Company
for any expenses incurred in the preparation, filing and processing of any
Registration Statement.
(d) Effective Registration. A registration will not count
as a Demand Registration: (i) if a Holder determines in its good faith judgment
to withdraw the proposed registration of any Registrable Securities requested to
be registered by a Demand Holder (x) due to marketing or regulatory reasons
subject to such Holder reimbursing the Company for its expenses in accordance
with Section 5.02(c) above, or (y) due to a material adverse change in the
Company (other than as a result of any action by the Holder); (ii) if such
registration is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason (other than as a result of any action by the Holder) and the Company
fails to promptly have such stop order, injunction or other order or requirement
removed, withdrawn or resolved to the Holder's satisfaction; or (iii) the
conditions to closing specified in the underwriting agreement or purchase
agreement entered into in
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connection with the registration relating to any such demand are not satisfied
(other than as a result of a default or breach thereunder by the relevant
Holder).
(e) Selection of Underwriters. If any of the Registrable
Securities covered by a Demand Registration are to be sold in an underwritten
offering, the relevant Holder, or Holders, will have the right to select the
managing underwriter(s) to administer the offering subject to the approval of
the Company, which will not be unreasonably withheld.
(f) Priority on Demand Registrations. If the managing
underwriter or underwriters of a Demand Registration advise the Company in
writing that in its or their opinion the number of Registrable Securities
proposed to be sold in such Demand Registration exceeds the number which can be
sold, or adversely affects the price at which the Registrable Securities are to
be sold, in such offering, the Company will include in such registration only
the number of Registrable Securities which, in the opinion of such underwriter
or underwriters, can be sold in such offering without such material adverse
effect. To the extent such Demand Registration includes Registrable Securities
of more than one Holder, the Registrable Securities so included in such Demand
Registration shall be apportioned (i) first, pro rata among such Holders based
upon the number of shares of Common Stock owned by each Holder at the date of
determination and (ii) second, pro rata among other shares of Common Stock
included in such Demand Registration; provided that if such Demand Registration
is effected pursuant to a Demand Request by either Company Shareholder or RM
such number of Registrable Securities (as adjusted for Adjustments) of either
Company Shareholder or RM that are owned by Company Shareholder and RM
immediately following the Transactions will be included first without regard to
the pro rata treatment described in clause (i) of this sentence.
(g) Assignability of Demand Registration Rights. The
rights offered a Shareholder pursuant to Section 5.02 are only assignable to a
Direct Permitted Transferee. Notwithstanding the foregoing, CSFB will be able to
assign its rights under this Article V to a Transferee that acquires from CSFB
at least 25% of the shares of Common Stock owned by CSFB as of the date hereof
(as adjusted for Adjustments). Any such assignment permitted hereunder shall be
effected hereunder only by giving written notice thereof from both the
transferee and the transferee to the Company.
SECTION 5.03. Registration Procedures. It shall be a condition
precedent to the obligations of the Company and any underwriter or underwriters
to take any action pursuant to this Article V that the Shareholders requesting
inclusion in any Piggyback Registration or Demand Registration (a
"Registration") shall furnish to the Company such information regarding them,
the Registrable Securities held by them, the intended method of disposition of
such Registrable Securities, and such agreements regarding indemnification,
disposition of such securities and other matters referred to in this Article V
as the Company shall reasonably request and as shall be required in connection
with the action to be taken by the Company.
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With respect to any Registration which includes Registrable Securities held by a
Shareholder, the Company will, subject to Sections 5.01 and 5.02 promptly:
(a) Prepare and file with the Commission a registration
statement on the appropriate form prescribed by the Commission and use
its best efforts to cause such registration statement to become
effective as soon as practicable thereafter; provided that the Company
shall not be obligated to maintain such registration effective for a
period longer than the Effectiveness Period; provided further that
before filing a registration statement or prospectus or any amendments
or supplements thereto, including documents incorporated by reference
after the initial filing of the registration statement, the Company
will furnish to the holders of the Registrable Securities covered by
such registration statement and the underwriter or underwriters, if
any, copies of or drafts of all such documents proposed to be filed,
including documents incorporated by reference in the Prospectus and, if
required by such holders, the exhibits incorporated by reference, at
least three (3) business days prior thereto, which documents will be
subject to the reasonable review of such holders and underwriters.
Holders will have the opportunity to object to any information
pertaining to such holders that is contained therein and the Company
will make the corrections reasonably requested by such holders with
respect to such information prior to filing any registration statement
or amendment thereto or any prospectus or any supplement thereto;
provided, however, that the Company will not file any registration
statement or amendment thereto or any prospectus or any supplement
thereto or any documents required to be incorporated by reference
therein to which holders of a majority of the Registrable Securities
covered by such registration statement or the underwriters, if any,
shall reasonably object;
(b) Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement and any
documents required to be incorporated by reference therein as may be
necessary to keep the registration statement effective for a period of
not less than the Effectiveness Period (but not prior to the expiration
of the time period referred to in Section 4(3) of the 1933 Act and Rule
174 thereunder, if applicable); cause the prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the 1933 Act; and comply with the
provisions of the 1933 Act applicable to it with respect to the
disposition of all Registrable Securities covered by such registration
statement during the applicable period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
registration statement or supplement to the prospectus;
(c) Furnish to such Shareholder, without charge, such number
of conformed copies of the registration statement and any
post-effective amendment thereto, as such Shareholder may reasonably
request, and such number of copies of the
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prospectus (including each preliminary prospectus) and any amendments
or supplements thereto, and any documents incorporated by reference
therein as the Shareholder or underwriter or underwriters, if any, may
request in order to facilitate the disposition of the securities being
sold by the Shareholder (it being understood that the Company consents
to the use of the prospectus and any amendment or supplement thereto by
the Shareholder covered by the registration statement and the
underwriter or underwriters, if any, in connection with the offering
and sale of the securities covered by the prospectus or any amendments
or supplements thereto);
(d) Notify such Shareholder, at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act, when
the Company becomes aware of the happening of any event as a result of
which the prospectus included in such registration statement (as then
in effect) contains any untrue statement of material fact or omits to
state a material fact necessary to make the statements therein (in the
case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading and, as
promptly as practicable thereafter, prepare and file with the
Commission and furnish a supplement or amendment to such prospectus so
that, as thereafter delivered to the investors of such securities, such
prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(e) In the case of an underwritten offering, enter into such
customary agreements (including underwriting agreements in customary
form) and make members of senior management of the Company available on
a basis reasonably requested by the underwriters to participate in,
"road show" and other customary marketing activities (including
one-on-one meetings with prospective purchasers of the Registrable
Securities) and cause to be delivered to the underwriters reasonable
opinions of counsel to the Company in customary form, covering such
matters as are customarily covered by opinions for an underwritten
public offering as the underwriters may reasonably request and
addressed to the underwriters;
(f) Make available, for inspection by any seller of
Registrable Securities, any underwriter participating in any
disposition pursuant to a registration statement, and any attorney,
accountant or other agent retained by any such seller or underwriter,
all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent that are necessary to be reviewed by such person in
connection with the preparation of such registration statement;
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(g) If requested, cause to be delivered, immediately prior to
the effectiveness of the registration statement (and, in the case of an
underwritten offering, at the time of delivery of any Registrable
Securities sold pursuant thereto), letters from the Company's
independent certified public accountants addressed to each selling
Shareholder (unless such selling Shareholder does not provide to such
accountants the appropriate representation letter required by rules
governing the accounting profession) and each underwriter, if any,
stating that such accountants are independent public accountants within
the meaning of the 1933 Act and the applicable rules and regulations
adopted by the Commission thereunder, and otherwise in customary form
and covering such financial and accounting matters as are customarily
covered by letters of the independent certified public accountants
delivered in connection with primary or secondary underwritten public
offerings, as the case may be;
(h) Provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of the
registration statement;
(i) Use its best efforts to cause all securities included in
such registration statement to be listed, by the date of the first sale
of securities pursuant to such registration statement, on any national
securities exchange, quotation system or other market on which the
Common Stock is then listed or proposed to be listed by the Company, if
any;
(j) Make generally available to its security holders an
earnings statement, which need not be audited, satisfying the
provisions of Section 11(a) of the 1933 Act as soon as reasonably
practicable after the end of the twelve (12)-month period beginning
with the first month of the Company's first fiscal quarter commencing
after the effective date of the registration statement, which statement
shall cover said twelve (12)-month period;
(k) After the filing of a registration statement, (i) promptly
notify each Shareholder holding Registrable Securities covered by such
registration statement of any stop order issued or, to the Company's
knowledge, threatened by the Commission and of the receipt by the
Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the
applicable securities or blue sky laws of any jurisdiction and (ii)
take all reasonable actions to obtain the withdrawal of any order
suspending the effectiveness of the registration statement or the
qualification of any Registrable Securities at the earliest possible
moment;
(l) Subject to the time limitations specified in paragraph (b)
above, if requested by the managing underwriter or underwriters or such
Shareholder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter
or underwriters or the Shareholder reasonably requests to be included
therein, including, without limitation, with respect to the number of
shares
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being sold by the Shareholder to such underwriter or underwriters, the
purchase price being paid therefor by such underwriter or underwriters
and with respect to any term of the underwritten offering of the
securities to be sold in such offering; and make all required filings
of such prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in
such prospectus supplement or post-effective amendment;
(m) As promptly as practicable after filing with the
Commission of any document which is incorporated by reference into a
registration statement, deliver a copy of such document to such
Shareholder;
(n) On or prior to the date on which the registration
statement is declared effective, use its best efforts to register or
qualify, and cooperate with such Shareholder, the underwriter or
underwriters, if any, and their counsel in connection with the
registration or qualification of, the securities covered by the
registration statement for offer and sale under the securities or blue
sky laws of each state and other jurisdiction of the United States as
the Shareholder or managing underwriter or underwriters, if any,
requests in writing, to use its best efforts to keep each such
registration or qualification effective, including through new filings,
or amendments or renewals, during the Effectiveness Period do any and
all other acts or things necessary or advisable to enable the
disposition in all such jurisdictions of the Registrable Securities
covered by the applicable registration statement; provided that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
(o) Cooperate with such Shareholder and the managing
underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and
registered in such names as the managing underwriter or underwriters,
if any, may request; and
(p) Use its best efforts to cause the securities covered by
the registration statement to be registered with or approved by such
other governmental agencies, authorities or self-regulatory bodies
within the United States as may be necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities.
At all times after an Initial Public Offering, the Company
shall file all reports required to be filed by it under the 1933 Act and the
1934 Act and the rules and regulations adopted by the Commission thereunder, and
take such further action as any Shareholders may reasonably request, all to the
extent required to enable such Shareholders to be eligible to sell Registrable
Securities pursuant to Rule 144 (or any similar rule then in effect).
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The Shareholders, upon receipt of any notice from the Company
of the happening of any event of the kind described in subsection (d) of this
Section 5.03, will forthwith discontinue disposition of the securities until the
Shareholders' receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (d) of this Section 5.03 or until it is advised in
writing (the "Advice") by the Company that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the prospectus, and, if so directed by the
Company, each Shareholder will, or will request the managing underwriter or
underwriters, if any, to, deliver, to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Shareholder's possession,
of the prospectus covering such securities current at the time of receipt of
such notice. In the event the Company shall give any such notice, the time
periods mentioned in subsections (a), (b) and (n) of this Section 5.03 shall be
extended by the number of days during the period from and including any date of
the giving of such notice to and including the date when each seller of
securities covered by such registration statement shall have received the copies
of the supplemented or amended prospectus contemplated by subsection (d) of this
Section 5.03 hereof or the Advice.
SECTION 5.04. Registration Expenses. (a) Subject to Section
5.02(c), in the case of any Registration, the Company shall bear all expenses
incident to the Company's performance of or compliance with Sections 5.01, 5.02
and 5.03 of this Agreement, including, without limitation, all Commission and
stock exchange or National Association of Securities Dealers, Inc. registration
and filing fees and expenses, fees and expenses of compliance with securities or
blue sky laws (including, without limitation, reasonable fees and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities), rating agency fees, printing expenses, messenger, telephone and
delivery expenses, fees and disbursements of counsel for the Company and all
independent certified public accountants and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (but not
including any underwriting discounts or commissions, or transfer taxes, if any,
attributable to the sale of Registrable Securities by a Piggyback Holder or
Holder or fees and expenses of more than one counsel representing the
Shareholders selling Registrable Securities under such Registration).
(b) In connection with each registration initiated
hereunder (whether a Demand Registration or a Piggyback Registration), the
Company shall reimburse the holders covered by such registration or sale for the
reasonable fees and disbursements of one law firm chosen by the holders of a
majority of the number of shares of Registrable Securities included in such
registration.
(c) The obligation of the Company to bear the expenses
described in Section 5.04(b) and to reimburse the holders for the expenses
described in Section 5.04(b) shall apply irrespective of whether a registration,
once properly demanded, if applicable, becomes effective, is withdrawn or
suspended, or is converted to another form of registration and
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irrespective of when any of the foregoing shall occur; provided, however, that
the expenses for any registration statement withdrawn pursuant to 5.02(c) prior
to its effectiveness at the request of a Holder (unless withdrawn following and
due to a Delay Notice), any registration statement withdrawn solely at the
request of a Holder, or any supplements or amendments to a registration
statement or prospectus resulting from a misstatement furnished to the Company
by a Holder, shall be borne by such Holder.
SECTION 5.05. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Shareholder, its officers, directors,
Affiliates and agents and each Person who controls (within the meaning of the
1933 Act or the 0000 Xxx) the Shareholder, including, without limitation any
general partner or manager of any thereof, against all losses, claims, damages,
liabilities and expenses (including reasonable counsel fees and disbursements)
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any registration statement, prospectus or preliminary
prospectus, or any amendment thereof or supplement thereto, in which such
Shareholder participates in an offering of Registrable Securities or in any
document incorporated by reference therein or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the prospectus or any preliminary
prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as the same are made in reliance on and in conformity
with any information with respect to such Shareholder furnished in writing to
the Company by such Shareholder expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Shareholder from whom the
Person asserting such loss, claim, damage or liability purchased the securities
if it is determined that such loss, claim, damage or liability was caused by
such Shareholder's failure to deliver to such Shareholder's immediate purchaser
a current copy of the prospectus (if the current copy of the prospectus was
required by applicable law to be so delivered) after the Company has furnished
such Shareholder with a sufficient number of copies of such prospectus. The
Company will also indemnify underwriters (as such term is defined in the 1933
Act), their officers and directors and each Person who controls such
underwriters (within the meaning of the 0000 Xxx) to the same extent as provided
above with respect to the indemnification of the Shareholders.
(b) Indemnification by the Shareholders. In connection
with any registration statement in which a Shareholder is participating, each
such Shareholder will furnish to the Company in writing such information and
affidavits with respect to such Shareholder as the Company reasonably requests
for use in connection with any registration statement or prospectus covering the
Registrable Securities of such Shareholder and to the extent permitted by law
agrees to indemnify and hold harmless the Company, its directors, officers and
agents and each Person who controls (within the meaning of the 1933 Act or the
0000 Xxx) the Company,
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against any losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
in the registration statement or prospectus or preliminary prospectus (in the
case of the prospectus or preliminary prospectus, in light of the circumstances
under which they were made) not misleading, to the extent, but only to the
extent, that such untrue statement or omission is made in reliance on and in
conformity with the information or affidavit with respect to such Shareholder so
furnished in writing by such Shareholder expressly for use in the registration
statement or prospectus; provided, however, that the obligation to indemnify
shall be several, not joint and several, among such Shareholders and the
liability of each such Shareholder shall be in proportion to and limited to the
net amount received by such Shareholder from the sale of Registrable Securities
pursuant to a registration statement in accordance with the terms of this
Agreement. The indemnity agreement contained in this Section 5.05 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
action or proceeding if such settlement is effected without the consent of such
seller (which consent shall not be unreasonably withheld or delayed). The
Company and the holders of the Registrable Securities hereby acknowledge and
agree that, unless otherwise expressly agreed to in writing by such holders, the
only information furnished or to be furnished to the Company for use in any
registration statement or prospectus relating to the Registrable Securities or
in any amendment, supplement or preliminary materials associated therewith are
statements specifically relating to (a) transactions or the relationship between
such holder and its Affiliates, on the one hand, and the Company, on the other
hand, (b) the beneficial ownership of shares of Common Stock by such holder and
its Affiliates, (c) the name and address of such holder and (d) any additional
information about such holder or the plan of distribution (other than for an
underwritten offering) required by law or regulation to be disclosed in any such
document.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) unless in such indemnified party's reasonable judgment a conflict of
interest may exist between such indemnified and indemnifying parties with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. The
failure to so notify the indemnifying party shall not relieve the indemnifying
party from any liability hereunder with respect to the action, except to the
extent that such indemnifying party is materially prejudiced by the failure to
give such notice; provided, however, that any such failure shall not relieve the
indemnifying party from any other liability which it may have to any other
party. No indemnifying party in the defense of any such claim or litigation,
shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not be
42
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obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party there may be one or more legal or
equitable defenses available to such indemnified party which are in addition to
or may conflict with those available to any other of such indemnified parties
with respect to such claim, in which event the indemnifying party shall be
obligated to pay the reasonable fees and expenses of such additional counsel or
counsels; provided, however, that such number of additional counsel must be
reasonably acceptable to the indemnifying party.
(d) Contribution. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) of this Section 5.05 is
unavailable to an indemnified party as contemplated by the preceding paragraphs
(a) and (b) of this Section 5.05, then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations. In
no event shall the liability of any selling Shareholder be greater in amount
than the amount of net proceeds received by such Shareholder upon such sale or
the amount for which such indemnifying party would have been obligated to pay by
way of indemnification if the indemnification provided in paragraph (b) of this
Section 5.05 had been available.
SECTION 5.06. 1934 Act Reports. The Company agrees that at all
times after it has filed a registration statement pursuant to the requirements
of the 1933 Act relating to any class of equity securities of the Company, it
will use its best efforts to file in a timely manner all reports required to be
filed by it pursuant to the 1934 Act to the extent the Company is required to
file such reports. Notwithstanding the foregoing, the Company may deregister any
class of its equity securities under Section 12 of the 1934 Act or suspend its
duty to file reports with respect to any class of its securities pursuant to
Section 15(d) of the 1934 Act if it is then permitted to do so pursuant to the
1934 Act and rules and regulations thereunder.
SECTION 5.07. Holdback Agreements. (a) Whenever the Company
proposes to register any of its equity securities under the 1933 Act for its own
account (other than on Form S-4 or S-8 or any similar successor form or another
form used for a purpose similar to the intended use of such forms) or is
required to use its best efforts to effect the registration of any Registrable
Securities under the 1933 Act pursuant to Section 5.01 or 5.02, each holder of
Registrable Securities agrees by acquisition of such Registrable Securities not
to effect any sale or distribution, including any sale pursuant to Rule 144
under the 1933 Act, or to request registration under Section 5.02 of any
Registrable Securities within 10 days prior to and 90 days (unless advised by
the managing underwriter that a longer period, not to exceed 180 days, is
required, or such shorter period as the managing underwriter for any
underwritten
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offering may agree) after the effective date of the registration statement
relating to such registration, except as part of such registration or unless in
the case of a private sale or distribution, the transferee agrees in writing to
be subject to this Section 5.07. If requested by such managing underwriter, each
holder of Registrable Securities agrees to execute a holdback agreement, in
customary form, consistent with the terms of this Section 5.07(a).
Notwithstanding the foregoing, no Shareholder will be restricted from selling
any Registrable Securities if such Shareholder was not able to sell all of its
Registrable Securities pursuant to such registration statement or such
Shareholder and its Affiliates beneficially own a number of shares of Common
Stock as of such date of determination equal to less than three percent (3%) of
the outstanding Common Stock of the Company.
(b) The Company agrees not to effect any sale or
distribution of any of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities within the 10 days prior
to and during the 90 days (unless advised by the managing underwriter that a
longer period, not to exceed 180 days, is required, or such shorter period as
the managing underwriter for any underwritten offering may agree) beginning on
the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or
pursuant to registrations on Form S-8 or S-4 or any successor forms thereto),
except that such restriction shall not prohibit (i) grants of employee stock
options or other issuances of Capital Stock pursuant to the terms of a Company
employee benefit plan, issuances by the Company of Capital Stock pursuant to the
exercise of such options or the exercise of any other employee stock options
outstanding on the date hereof, (ii) the Company from issuing shares of Capital
Stock in private placements pursuant to Section 4(2) of the 1933 Act or in
connection with a strategic alliance, or (iii) the Company from publicly
announcing its intention to issue, or actually issuing, shares of Capital Stock
to shareholders of another entity as consideration for the Company's acquisition
of, or merger with, such entity. In addition, upon the request of the managing
underwriter, the Company shall use its best efforts to cause each holder of its
equity securities or any securities convertible into or exchangeable or
exercisable for any of such securities whether outstanding on the date of this
Agreement or issued at any time after the date of this Agreement (other than any
such securities acquired in a public offering), to agree not to effect any such
public sale or distribution of such securities during such period, except as
part of any such registration if permitted, and to cause each such holder to
enter into a similar agreement to such effect with the Company.
SECTION 5.08. Participation in Registrations. No Shareholder
may participate in any Registration hereunder which is underwritten unless such
Shareholder (a) agrees to sell its securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements, and (b) completes and executes all questionnaires, powers of
attorney, underwriting agreements and other documents customarily required under
the terms of such underwriting arrangements.
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SECTION 5.09. Remedies. Each Shareholder shall have the right
and remedy to have the provisions of Sections 5.01 and 5.02 specifically
enforced by any court having jurisdiction in the event that the Company
materially breaches such provisions, and the Company shall reimburse such
Shareholder for the reasonable costs of and expenses for counsel for such
Shareholder incurred in connection with such proceeding.
SECTION 5.10. Other Registration Rights. The Company will not
grant any Person any demand or piggyback registration rights with respect to the
Capital Stock of the Company other than registration rights that would not be in
conflict or inconsistent with the rights of the Shareholders as set forth in
this Article V.
SECTION 5.11. Rule 144. The Company shall file any reports
required to be filed by it under the 1933 Act and the 1934 Act and the rules and
regulations adopted by the Commission thereunder, and it will take such further
action as any holder may reasonably request to make available adequate current
public information with respect to the Company meeting the current public
information requirements of Rule 144(c) under the 1933 Act, to the extent
required to enable such holder to sell Registrable Securities without
registration under the 1933 Act within the limitation of the exemptions provided
by (i) Rule 144 under the 1933 Act, as such Rule may be amended from time to
time, or (ii) any similar rule or regulation hereafter adopted by the
Commission. Notwithstanding the foregoing, nothing in this Section 5.11 shall be
deemed to require the Company to register any of its securities pursuant to the
1934 Act.
ARTICLE VI
RIGHTS OF HOLDERS OF CLASS A pREFERRED STOCK
SECTION 6.01. Series A Preferred Stock. For so long as Company
Shareholder or one of its Affiliates is the direct or indirect beneficial owner
of at least $10.0 million in liquidation preference of Class A Preferred Stock,
the Company will not (1) register for sale in any underwritten public offering
any shares of Common Stock beneficially owned by Sponsor and its Affiliates or
(2) redeem or repurchase any shares of Common Stock beneficially owned by
Sponsor and its Affiliates out of the proceeds of any underwritten public
offering by the Company, in any such case, without optionally redeeming or
repurchasing all of the shares of Class A Preferred Stock owned by Company
Shareholder and its Affiliates; provided, however, that if the Company has no
such right to optionally redeem or repurchase all of the shares of Class A
Preferred Stock, then the Company, at its option, may offer to purchase for cash
all of the Class A Preferred Stock held by Company Shareholder and its
Affiliates at a price equal to the liquidation preference of the Class A
Preferred Stock, together with cumulated and unpaid dividends. The provisions of
this Section 6.01 will no longer be operative once the Company has made such
offer regardless of whether or not the Company Shareholder sells any shares of
Class A Preferred Stock pursuant to such offer unless such offer is
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not effected because the Company does not purchase the shares of Class A Common
Stock which Company Shareholder has requested be purchased.
SECTION 6.02. Management Fee. For so long as Company
Shareholder or any of its Affiliates is the direct or indirect beneficial owner
of any Class A Preferred Stock, Sponsor agrees that any management fee due and
owning to Sponsor by the Company will accrue but not be payable if at any time
there are cumulated and unpaid dividends in respect of the Class A Preferred
Stock.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Notices. All notices, requests and other
communications to any party, hereunder shall be in writing (including bank wire,
telex, facsimile or similar writing) and shall be given to such party at its
address or telex or facsimile number set forth on the signature pages hereof or
in the relevant Joinder Agreement or such other address or telex or facsimile
number as such party may hereafter specify in writing to the Secretary of the
Company for the purpose by notice to the party sending such communication. Each
such notice, request or other communication shall be effective (i) if given by
telex or facsimile, when such message is transmitted to the number specified on
the signature pages to this Agreement or any Joinder Agreement, (ii) if given by
mail, three (3) business days after such communication is deposited in the mails
registered or certified, return receipt requested, with postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the address specified on the signature pages to this Agreement or any Joinder
Agreement.
SECTION 7.02. Binding Effect; Benefits; Entire Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties to this
Agreement and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended or shall be construed to give any
person other than the parties to this Agreement or their respective successors
or assigns any legal or equitable right, remedy or claim under or in respect of
any agreement or any provision contained herein. This Agreement constitutes the
entire agreement and understanding, and supersedes all prior agreements and
understandings, both oral and written, between the parties hereto relating to
the subject matter hereof.
SECTION 7.03. Waiver. Any party hereto may by written notice
to the other (a) extend the time for the performance of any of the obligations
or other actions of any other party under this Agreement; (b) waive compliance
with any of the conditions or covenants of any other party contained in this
Agreement; and (c) waive or modify performance of any of the obligations of any
other party under this Agreement. Except as provided in the preceding sentence,
no action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or
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agreements contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
preceding or succeeding breach and no failure by any party to exercise any right
or privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
SECTION 7.04. Amendment. Other than as a result of the
execution and delivery of a Joinder Agreement, this Agreement may not be
amended, modified or supplemented in any respect except by a written instrument
executed by each Shareholder and the Company; provided that this Agreement may
be amended and restated or amended without consent of Shareholders for the
addition of new shareholders after the date hereof if such addition does not
adversely affect the rights of the Shareholders (it being agreed that the
provision of demand registration rights and piggyback registration rights and
tag-along rights on an equal basis with HIP Co-Investors will not constitute an
adverse affect).
SECTION 7.05. Assignability. Neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by either the Company or any Shareholder except as otherwise
expressly stated hereunder or with the prior written consent of each other
party. A Direct Permitted Transferee who executes a Joinder Agreement in
accordance with the provisions hereof may be assigned any rights available
hereunder (other than Section 4.06). All of the rights offered a Shareholder
under this Agreement who executes a Joinder Agreement are assignable to a
Transferee, except for the rights set forth in Sections 4.05, 4.06, 4.07, 4.08,
4.09, 4.10 and 5.02 (other than certain rights granted to CSFB pursuant to
Section 5.02). The rights set forth in Sections 4.04 and 5.02 are assignable to
a Transferee who executes a Joinder Agreement to the extent provided in Section
4.04 and 5.02(g), respectively.
SECTION 7.06. Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law that would require the application of the laws of another
jurisdiction, and the parties irrevocably submit to (and waive immunity from)
the jurisdiction of the federal and state courts located in the County of New
York in the State of New York.
SECTION 7.07. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of the provisions
of this Agreement and to enforce specifically the terms and provisions hereof in
any state or federal court of New York (this being in addition to any other
remedy to which they are entitled at law or in equity), and each party hereto
agrees to waive in any action for such enforcement the defense that a remedy at
law would be adequate.
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SECTION 7.08. Severability. If any provision of this Agreement
is declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of the Agreement will not be affected and
will remain in full force and effect.
SECTION 7.09. Additional Securities Subject to Agreement. Each
Shareholder agrees that any other shares of Common Stock of the Company which it
hereafter acquires by means of a stock split, stock dividend, distribution,
exercise of options or warrants or otherwise (other than pursuant to a public
offering) whether by merger, consolidation or otherwise (including shares of a
surviving corporation into which the shares of Common Stock of the Company are
exchanged in such transaction) will be subject to the provisions of this
Agreement to the same extent as if held on the date hereof, including for
purposes of constituting Registrable Securities hereunder.
SECTION 7.10. Name Change. For the benefit of Company
Shareholder, the Company agrees to change its corporate name (but not the trade
names used by its businesses) to exclude "Masco" or a derivation thereof from
its corporate name prior to consummating an Initial Public Offering of its
Common Stock.
SECTION 7.11. Section and Other Headings. The section and
other headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
SECTION 7.12. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument. A
facsimile, telecopy or other reproduction of this Agreement may be executed by
one or more parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request of any party
hereto, all parties hereto agree to execute an original of this Agreement as
well as any facsimile, telecopy or other reproduction hereof.
SECTION 7.13. Termination of Certain Provisions. The
provisions of this Agreement set forth in Sections 3.01, 3.02, 4.01, 4.02, 4.03,
4.04(b) (except as it relates to CSFB and Company Shareholder), 4.04(d) (except
as it relates to CSFB and Company Shareholder) and 4.09 will terminate and be of
no force and effect upon the occurrence of a Qualifying Public Equity Offering.
The provisions of this Agreement set forth in Sections 4.04(a) (except as it
relates to CSFB and Company Shareholder) and 4.05 will terminate and be of no
force and effect upon the occurrence of an Initial Public Offering. The
provisions of this Agreement set forth in Sections 4.04 (insofar as it relates
to CSFB and Company Shareholder), 4.06, 4.07, 4.08 and 4.10 will terminate as to
a particular Shareholder as set forth in such section.
48
-45-
SECTION 7.14. ERISA Matters. The Company agrees to give
Sponsor the rights set forth in Sections 4.07 and 4.08 to the extent Sponsor
does not have the ability to designate a Person to the Board of Directors of the
Company and failure to have the rights set forth in Section 4.07 or 4.08 would
cause Sponsor to have an ERISA Problem. For purposes of this Section 7.14,
"ERISA Problem" means that the assets of Sponsor and its Affiliates would be
considered "Plan Assets" within the meaning of 29 CFR 2510.3-101 due to the fact
that Sponsor and its Affiliates do not have the rights specified in Section 4.07
or 4.08.
SECTION 7.15. Regulatory Cooperation. If any Shareholder
reasonably determines that, by reason of any existing or future federal or state
rule, regulation, guideline, order, request or directive (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) (collectively, a "Regulatory Requirement"), it is effectively
restricted or prohibited from holding any of the shares of Common Stock
(including any shares of Capital Stock or other securities distributable in any
merger, reorganization, readjustment or other reclassification of such shares),
the Company and the other Shareholders shall take such action as may be
reasonably necessary to permit such Shareholder to comply with such Regulatory
Requirement; provided, that no such action pursuant to this Section 7.15 shall
adversely affect the Company, the rights of the other Shareholders hereunder or
the rights, preferences, qualifications and limitations of any Capital Stock of
the Company held by the other Shareholders; provided, further that neither the
Company nor any Shareholder shall be required to purchase any of such shares of
Common Stock as a result of such Regulatory Requirement. Such reasonable action
to be taken may include the Company's authorization of one or more new classes
of non-voting common stock that is otherwise substantially identical to the
Common Stock then owned by such Shareholder and the amendment of the Company's
certificate of incorporation or any other documents or instruments executed in
connection with the shares held by such Shareholder. Such Shareholder shall give
written notice to the Company and the other Shareholders of any such
determination and the actions necessary to comply with such Regulatory
Requirement, and the Company and such other Shareholders shall take all
reasonably necessary steps to comply with such determination as expeditiously as
possible.
SECTION 7.16. Publicity. None of the parties hereto shall
issue any press release or make any public disclosure regarding the transactions
contemplated hereby unless such press release or public disclosure shall be
approved by those parties mentioned in such press release or public disclosure
in advance. Notwithstanding the foregoing, each of the parties hereto may, in
documents required to be filed by it with the Commission or other regulatory
bodies, make such statements with respect to the transactions contemplated
hereby as each may be advised by counsel is legally necessary or advisable, and
may make such disclosure as it is advised by its counsel is required by law.
SECTION 7.17. Expenses. The Company agrees, if the
Transactions are consummated, to reimburse each Qualified Investor for all
reasonable out-of-pocket expenses
49
-46-
arising in connection with the Transactions promptly (including, without
limitation, and, in any event, within 30 days after any invoice or other
statement or notice), including all reasonable documented fees and expenses of
counsel to such Qualified Investor incurred in connection with this Agreement
and the transactions contemplated hereby and all reasonable out-of-pocket
expenses incurred by such Qualified Investor for so long as such Person is a
Qualified Investor in connection with the monitoring of its equity investment in
the Company.
[Signature Pages Follow]
50
IN WITNESS WHEREOF, the Company and each Shareholder have
executed this Agreement as of the day and year first above written.
MASCOTECH, INC.
By: /s/ Xxxxx X. Liner
---------------------------
Name: Xxxxx X. Liner
Title: Vice President
Notices:
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board and
General Counsel
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
51
MASCO CORPORATION
By: Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Notices:
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board and
General Counsel
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
52
XXXXXXX X. XXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Notices:
Xxxxxxx X. Xxxxxxxxx
c/o Masco Corporation
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Xxxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
53
XXXXXXX AND XXXX XXXXXXXXX
FOUNDATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Notices:
Xxxxxxx and Xxxx Xxxxxxxxx Foundation
c/o Masco Corporation
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Xx., Esq.
c/o Masco Corp.
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
54
HEARTLAND ENTITY:
HEARTLAND INDUSTRIAL PARTNERS, L.P.
By: Heartland Industrial Associates L.L.C.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Member
Notices:
Heartland Industrial Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
55
HEARTLAND ENTITY:
HEARTLAND INDUSTRIAL PARTNERS (FF), L.P.
By: Heartland Industrial Associates L.L.C.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Member
Notices:
Heartland Industrial Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
56
HEARTLAND ENTITY:
HEARTLAND INDUSTRIAL PARTNERS (E1), L.P.
By: Heartland Industrial Associates L.L.C.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Member:
Notices:
Heartland Industrial Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
57
HEARTLAND ENTITY:
HEARTLAND INDUSTRIAL PARTNERS (K1), L.P.
By: Heartland Industrial Associates L.L.C.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Member
Notices:
Heartland Industrial Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
58
HEARTLAND ENTITY:
HEARTLAND INDUSTRIAL PARTNERS (C1), L.P.
By: Heartland Industrial Associates L.L.C.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Member:
Notices:
Heartland Industrial Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
00
XXXX XXXXX XXXXXXX XXXXXXXX, X.X.X.
By: /s/ Xxx Xxxxx
---------------------------
Name: Xxx Xxxxx
Title: Managing Director
Notices:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
60
CRM 1999 ENTERPRISE FUND, LLC
By: /s/ Xxx Xxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxx
Title: Exec. VP of Managing Member
Notices:
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
61
HIP CO-INVESTOR:
KLEINWORT XXXXXX HOLDINGS, INC.
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Authorized Person
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Person
Notices:
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
With a copy to
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
Facsimile: (000) 000-0000
62
HIP CO-INVESTOR:
00 XXXX XXXXXX ASSOCIATES, LLC
By: Kleinwort Xxxxxx (USA), Inc.
Its: Attorney-in-Fact
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Authorized Person
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Person
Notices:
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
With a copy to
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
Facsimile: (000) 000-0000
63
HIP CO-INVESTOR:
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
Notices:
Metropolitan Life Insurance Company
Corporate Equities
000 Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Metropolitan Life Insurance Company
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Esq. (Law, Area 6H)
Facsimile: (000) 000-0000
and
Metropolitan Life Insurance Company
0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx XxXxxxx - Securities
Accounting
Facsimile: (000) 000-0000
64
HIP CO-INVESTOR:
FIRST UNION CAPITAL PARTNERS, LLC
By: /s/ A. Xxxxxxxx Xxxxx
----------------------------------
Name: A. Xxxxxxxx Xxxxx
Title: Principal
Notices:
First Union Capital Partners
One First Union Center, 12th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: A. Xxxxxxxx Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
65
HIP CO-INVESTOR:
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: SVP
Notices:
GE Capital Equity Investments, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
66
HIP CO-INVESTOR:
CREDIT SUISSE FIRST BOSTON
U.S. EXECUTIVE ADVISORS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Notices:
Credit Suisse First Boston
U.S. Executive Advisors, L.P.
c/o Credit Suisse First Boston Advisory
Partners, LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
67
HIP CO-INVESTOR:
CREDIT SUISSE FIRST BOSTON EQUITY
PARTNERS (BERMUDA), L.P.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Notices:
Credit Suisse First Boston Equity Partners
(Bermuda), L.P.
c/o Credit Suisse First Boston Advisory
Partners, LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
68
HIP CO-INVESTOR:
CREDIT SUISSE FIRST BOSTON
EQUITY PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Notices:
Credit Suisse First Boston Equity Partners, L.P.
c/o Credit Suisse First Boston Advisory
Partners, LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
69
HIP CO-INVESTOR:
EMA PARTNERS FUND 2000, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
Notices:
EMA Partners Fund 2000, L.P.
c/o Credit Suisse First Boston Advisory
Partners, LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
70
EMA PRIVATE EQUITY FUND 2000, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Attorney-in-Fact
EMA Private Equity Fund 2000, L.P.
c/o Credit Suisse First Boston Advisory
Partners, LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
71
MERCHANT CAPITAL, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Merchant Capital, Inc.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
72
HIP CO-INVESTOR:
BANCBOSTON CAPITAL INC.
By: /s/ Xxxx X. XxXxxxx
----------------------------------
Name: Xxxx X. XxXxxxx
Title: Managing Director
Notices:
BancBoston Capital Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
73
PRIVATE EQUITY PORTFOLIO FUND II, LLC
By: Fleet Bank, NA, its Manager
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
Notices:
BancBoston Capital Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
74
EXHIBIT A
JOINDER AGREEMENT
WHEREAS, the undersigned is acquiring simultaneously with the
execution of this Agreement common stock (the "Common Stock"), par value $1.00
per share of MascoTech, Inc. (the "Company"); and
WHEREAS, as a condition to the acquisition of the Common
Stock, the undersigned has agreed to join in a certain Stockholders Agreement
(the "Stockholders Agreement") dated as of November 28, 2000 among MascoTech,
Inc. and the Shareholders (as such term is defined in the Stockholders
Agreement); and
WHEREAS, the undersigned understands that execution of this
Agreement is a condition precedent to the acquisition of the Common Stock;
NOW, THEREFORE, as an inducement to both the transferor of the
Common Stock and the other Shareholders (as such term is defined in the
Stockholders Agreement), to Transfer (as such term is defined in the
Stockholders Agreement) and to allow the Transfer of the Common Stock to the
undersigned, the undersigned agrees as follows:
1. The undersigned hereby joins in the Stockholders Agreement
and agrees to be bound by the terms and provisions of the Stockholders Agreement
as provided by the Stockholders Agreement.
2. The undersigned hereby consents that the certificate or
certificates to be issued to the undersigned representing the Common Stock shall
be legended as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN
APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER. ANY SALE PURSUANT TO
CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH
SALE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
TERMS AND CONDITIONS, INCLUDING WITH RESPECT TO THE DIRECT OR INDIRECT
TRANSFER THEREOF, OF A SHAREHOLDERS AGREEMENT DATED AS OF NOVEMBER 28,
2000. THE SHAREHOLDERS AGREEMENT CONTAINS, AMONG OTHER
75
-2-
THINGS, SIGNIFICANT RESTRICTIONS ON TRANSFER OF THE SECURITIES OF THE
COMPANY. A COPY OF THE SHAREHOLDERS AGREEMENT IS AVAILABLE UPON REQUEST
FROM THE COMPANY."
IN WITNESS WHEREOF, the undersigned has executed this
Agreement this ____ day of _______________, 20__.
___________________________________
Name:
Title:
Address:
76
EXHIBIT B
Representatives of CSFB
Xxxxxxx X. Xxxxxx Phone: (000) 000-0000
Fax: (000) 000-0000
Xxx Xxxxxx Phone: (000) 000-0000
Fax: (000) 000-0000
Xxx Xxxxxx Phone: (000) 000-0000
Fax: (000) 000-0000
77
SCHEDULE 2.04
SHAREHOLDER COMMON SHARES
Heartland Entities 12,261,251
Xxxxxxx Xxxxxxxxx 621,170(a)
Xxxxxxx and Xxxx Xxxxxxxxx Foundation 661,260
Masco Corporation 2,492,248
Kleinwort Xxxxxx Holdings, Inc. 591,716
00 Xxxx Xxxxxx Associates LLC 295,858
Metropolitan Life Insurance Company 591,716
First Union Capital Partners LLC 1,479,290
GE Capital Equity Investments Inc. 591,716
Credit Suisse First Boston Equity Partners, L.P. 6,247,530
Credit Suisse First Boston Equity Partners (Bermuda), L.P. 1,746,345
Credit Suisse First Boston U.S. Executive Advisors, L.P. 5,558
EMA Partners Fund 2000, L.P. 533,168
EMA Private Equity Fund 2000, L.P. 343,139
Merchant Capital, Inc. 177,515
BancBoston Capital Inc. 769,231
Private Equity Portfolio Fund II, LLC 118,343
--------------------------
(a) Exclusive of 49,215 shares of restricted stock that will vest on the
closing date of the Transactions (assuming no cash elections) and
147,645 shares of unvested restricted stock.
78
- 2 -
SHAREHOLDER COMMON SHARES
Long Point Capital Fund L.P. 581,025
Long Point Capital Partners LLC 10,692
CRM 1999 Enterprise Fund, LLC 59,172
