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EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT (this "AGREEMENT") is made as of June 12, 1998, by and
among GLOBAL VACATION GROUP, INC., a New York corporation (formerly, Allied Bus
Corp.) (the "COMPANY"), XXXXXX EQUITY INVESTORS III, L.P., a Delaware limited
partnership (the "INVESTOR"), and each other Person listed on the Schedule of
Holders attached hereto as Exhibit A (together with the Investor, the
"SHAREHOLDERS").
RECITALS:
A. The Company, the Investor and certain other Shareholders are parties
to an Equity Purchase Agreement dated March 30, 1998 (the "PURCHASE AGREEMENT").
In order to induce such Shareholders to enter into the Purchase Agreement, the
Company agreed to provide the registration rights set forth in this Agreement.
Any other Persons who purchase capital stock of the Company may, with the
consent of the Company's Board of Directors and the Investor, become parties to
this Agreement by executing a Joinder Agreement.
B. Unless otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in Section 8 hereof.
AGREEMENT
The parties hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time after the earlier of
(i) 180 days after the closing of the Initial Public Offering or (ii) the first
anniversary of the date hereof, the holders of a majority of the Registrable
Securities may request registration under the Securities Act of all or any
portion of their Registrable Securities on Form S-1 or any similar long-form
registration ("LONG-FORM Registrations").
(b) LONG-FORM REGISTRATIONS. The holders of a majority of the
Registrable Securities shall be entitled to request (i) two Long-Form
Registrations in which the Company shall pay all Registration Expenses
("COMPANY-PAID LONG-FORM REGISTRATIONS") and (ii) an unlimited number of
Long-Form Registrations in which the holders of Registrable Securities included
in such registration shall pay their share of the Registration Expenses as set
forth in Section 5 hereof. A registration shall not count as one of the
permitted Company-paid Long-Form Registrations until it has become effective
and no Long-Form Registration shall count as one of the permitted Company-paid
Long-Form Registrations unless the holders of Registrable Securities are able
to register and sell at least 90% of the Registrable Securities
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requested to be included in such registration; provided that in any event the
Company shall pay all Registration Expenses in connection with any registration
initiated as a Company-paid Long-Form Registration whether or not it has become
effective and whether or not such registration has counted as one of the
permitted Company-paid Long-Form Registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to Section l(b), the holders of a majority of
the Registrable Securities shall be entitled to request four registrations
under the Securities Act of all or part of their Registrable Securities on
Forms S-2 or S-3 or any similar short-form registration ("SHORT-FORM
REGISTRATIONS") in which the Company shall pay all Registration Expenses. After
the Company has become subject to the reporting requirements of the Securities
Exchange Act, the Company shall use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of Registrable Securities,
including, without limitation, as a "shelf registration" if so requested by the
holders of a majority of the Registrable Securities.
(d) DEMAND REGISTRATIONS. All registrations requested pursuant
to Sections l(a), (b) and (c) are referred to herein as "DEMAND REGISTRATIONS."
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered. Within ten days after receipt of any such request,
the Company shall give written notice of such requested registration to all
other holders of Registrable Securities and, except as provided in Section 1(e)
below, shall include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's notice.
(e) PRIORITY ON DEMAND REGISTRATIONS. The Company shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of
the Registrable Securities included in such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
of Registrable Securities making such Demand Registration, the Company shall
include in such registration: (i) first, the Investor Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Investor Registrable Securities on the basis of the number of shares owned
by such holders; (ii) second, the Seller Registrable Securities requested to be
included in such registration, pro rata among the holders of such Seller
Registrable Securities on the basis of the number of shares owned by such
holders; (iii) third, the Management Registrable Securities requested to be
included in such registration, pro rata among the holders of such Management
Registrable Securities on the basis of the number of shares owned by such
holders; and (iv) fourth, other securities which are not Registrable Securities
requested to be included in such registration pursuant to contractual
registration rights ("OTHER REGISTRABLE SECURITIES"), pro rata among
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the holders thereof on the basis of the number of their securities requested to
be included therein. Without the consent of the Company and the holders of a
majority of the Registrable Securities included in such registration, any
Persons other than holders of Registrable Securities who participate in Demand
Registrations must pay their share of the Registration Expenses as provided in
Section 5 hereof.
(f) RESTRICTIONS ON LONG-FORM REGISTRATIONS. The Company shall
not be obligated to effect any Long-Form Registration within 180 days after the
effective date of a previous Long-Form Registration or a previous registration
in which the holders of Registrable Securities were given piggyback rights
pursuant to Section 2 and in which there was no reduction in the number of
Registrable Securities requested to be included. The Company may postpone for
up to 180 days the filing or the effectiveness of a registration statement for
a Demand Registration if the Company and the holders of a majority of the
Registrable Securities agree that such Demand Registration would reasonably be
expected to have a material adverse effect on any proposal or plan by the
Company or any of its subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer, reorganization or similar transaction; provided that in such
event, the holders of Registrable Securities initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request is
withdrawn, such Demand Registration shall not count as one of the permitted
Company-paid Long Form Registrations hereunder and the Company shall pay all
Registration Expenses in connection with such registration. The Company may
delay a Demand Registration hereunder only once in any twelve-month period.
(g) SELECTION OF UNDERWRITERS. The holders of a majority of
the Registrable Securities included in any Long-Form Registration, which is a
Demand Registration, shall have the right to select the investment banker(s)
and manager(s) to administer the offering.
(h) OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, the Company shall not grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without
the prior written consent of the holders of a majority of the Registrable
Securities.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities under the Securities Act (other than the Initial
Public Offering or pursuant to a Demand Registration or a registration on Form
X-0, Xxxx X-0 or any successor form) and the registration form to be used may
be used for the registration of Registrable Securities (a "PIGGYBACK
REGISTRATION"), the Company shall give prompt written notice (in any event
within three business days after its receipt of notice of any exercise of
demand registration rights other than under this Agreement) to all holders of
Registrable Securities of
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its intention to effect such a registration and shall include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 25 days after the
receipt of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, the Company shall include in
such registration (i) first, the securities the Company proposes to sell; (ii)
second, the Investor Registrable Securities requested to be included in such
registration, pro rata among the holders of such Investor Registrable
Securities on the basis of the number of shares owned by such holders; (iii)
third, the Seller Registrable Securities requested to be included in such
registration, pro rata among the holders of such Seller Registrable Securities
on the basis of the number of shares owned by such holders; (iv) fourth, the
Management Registrable Securities requested to be included in such
registration, pro rata among the holders of such Management Registrable
Securities on the basis of the number of shares owned by such holders; and (v)
fifth, Other Registrable Securities requested to be included in such
registration, pro rata among the holders thereof on the basis of the number of
Other Registrable Securities requested to be included therein; provided,
however that in any Piggyback Registration other than the Initial Public
Offering of the Company's Common Stock, the holders of Registrable Securities
shall be permitted to include in any such registration not less than 25% of the
number of shares of Common Stock proposed to be sold in such offering, unless
the holders of a majority of the Registrable Securities requesting such
Piggyback Registration agree in writing to reduce such position or to waive
their rights under this proviso.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
Other Registrable Securities, and the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
of a majority of the Registrable Securities to be included in such
registration, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders of Other Registrable
Securities requesting such registration, (ii) second, the Investor Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Investor Registrable Securities on the basis of the number of
shares owned by such holders; (iii) third, the Seller Registrable Securities
requested to be included in such registration, pro rata among the holders of
such Seller Registrable Securities on the basis of the number of shares owned
by such holders; (iv) fourth, the Management Registrable Securities requested
to be included in such registration, pro rata among the holders
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of such Management Registrable Securities on the basis of the number of shares
owned by such holders; and (v) fifth, any non-requesting Other Registrable
Securities requested to be included in such registration, pro rata among the
holders thereof on the basis of the number of their securities requested to be
included therein.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is
an underwritten offering, the selection of investment banker(s) and manager(s)
for the offering must be approved by the Investor. Such approval shall not be
unreasonably withheld.
3. HOLDBACK AGREEMENTS.
(a) HOLDERS OF REGISTRABLE SECURITIES. Each holder of
Registrable Securities shall not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 90-day period beginning on
the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included (except as
part of such underwritten registration), unless the underwriters managing the
Demand Registration or Piggyback Registration otherwise agree.
(b) THE COMPANY. The Company shall not effect any public sale
or distribution of any of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the seven days
prior to and during the 180-day period beginning on the first effective date of
any underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such Demand Registration or Piggyback Registration or
pursuant to registrations on Form S-4, Form S-8 or any successor form), unless
the underwriters managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective; provided that before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company shall furnish to the
counsel selected by the holders of a majority of the Registrable Securities
included in such registration statement copies of all such documents proposed
to be filed, which documents shall be subject to the review and comment of such
counsel;
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and
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Exchange Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective for a period of not less than 120
days, if applicable, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
provided, however, that if the Company is eligible to use Form S-3, the holders
of Registrable Securities may require the Company to keep such registration
effective as a "shelf registration" for a period of up to two years;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction, or (iii) consent to
general service of process in any such jurisdiction;
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by
such registration statement as a NASDAQ "national market system security"
within the meaning of Rule llAa2-1 of the Securities and Exchange Commission
or, failing that, to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, to arrange
for at least two market makers to register as such with respect to such
Registrable Securities with the NASD;
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(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split
or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities, which holder,
in the Company's sole and exclusive judgment, might be deemed to be an
underwriter or a controlling Person of the Company, to participate in the
preparation of such registration or comparable statement and to require the
insertion therein of material furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) subject to Section 4(d) above, use its best efforts to
cause any Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the sellers thereof to consummate the disposition
of such Registrable Securities;
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(n) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request; and
(o) if the offering is underwritten and at the request of any
seller of Registrable Securities, use its best efforts to furnish on the date
that Registrable Securities are delivered to the underwriters for sale pursuant
to such registration an opinion dated such date of counsel representing the
Company for the purposes of such registration, addressed to the underwriters
and to such seller, stating that such registration statement has become
effective under the Securities Act and that (i) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (ii) the registration statement, the
related prospectus and each amendment or supplement thereof comply as to form
in all material respects with the requirements of the Securities Act (except
that such counsel need not express any opinion as to financial statements
contained therein) and (iii) to such other matters as reasonably may be
requested by counsel for the underwriters or by such seller or its counsel.
5. REGISTRATION EXPENSES.
(a) PAYMENT OF REGISTRATION EXPENSES. All expenses incident to
the Company's performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"REGISTRATION EXPENSES"), shall be borne as provided in this Agreement, except
that the Company shall, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on, the NASD
automated quotation system.
(b) REIMBURSEMENT OF REGISTRATION EXPENSES. In connection with
each Demand Registration and each Piggyback Registration, the Company shall
reimburse the holders of Registrable Securities included in such registration
for the reasonable fees and disbursements of one counsel chosen by the holders
of a majority of the Registrable Securities included in such registration and
for the reasonable fees and disbursements of each additional counsel retained
by any holder of Registrable Securities for the purpose of rendering a legal
opinion on behalf of such holder in connection with any underwritten Demand
Registration or Piggyback Registration.
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(c) PAYMENT OF REGISTRATION EXPENSES BY HOLDERS OF REGISTRABLE
SECURITIES. To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay its proportionate share of all Registration Expenses based upon the
ratio of the aggregate selling price of each holder's securities included
therein to the aggregate selling price of all securities to be so registered.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the extent permitted by law, each holder of Registrable
Securities, its officers and directors and each Person who controls such holder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
the same are caused by or contained in any information furnished in writing to
the Company by such holder expressly for use therein or by such holder's
failure to deliver a copy of the registration statement or prospectus or any
amendments or supplements thereto after the Company has furnished such holder
with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company shall indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) INDEMNIFICATION BY THE HOLDERS OF REGISTRABLE SECURITIES.
In connection with any registration statement in which a holder of Registrable
Securities is participating, each such holder shall furnish to the Company in
writing such information and affidavits as the Company reasonably requests for
use in connection with any such registration statement or prospectus and, to
the extent permitted by law, shall indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by such holder; provided that the obligation to indemnify shall be
individual, not joint and several, for each holder and shall be limited to the
net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) PROCEDURE FOR INDEMNIFICATION. Any Person entitled to
indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided that the failure to give prompt
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notice shall not impair any Person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not
be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim shall not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to
such claim.
(d) SURVIVAL. The indemnification provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities. The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's indemnification is unavailable for any reason.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder unless such Person:
(a) in the case of a registration which is underwritten, agrees
to sell such Person's securities on the basis provided in the applicable
underwriting arrangement; provided, however, that no holder of less than 10% of
all Registrable Securities included in any underwritten registration (other
than an executive officer or director of the Company) shall be required to make
any representations or warranties to the Company or the underwriters (other
than representations and warranties regarding such holder, such holder's
ownership of stock and such holder's intended method of distribution) or to
undertake any indemnification obligations to the Company or the underwriters
with respect thereto, except as otherwise provided in Section 6 hereof;
(b) as expeditiously as possible, notifies the Company, at any
time when a prospectus relating to such Person's Registrable Securities is
required to be delivered under the Securities Act, of the happening of any
event as a result of which such prospectus contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading;
(c) complies with all reasonable requests made by the Company or
its counsel with respect to the registration of such Person's Registrable
Securities, including, without limitation, providing access to all relevant
books and records; and
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(d) completes, executes and delivers all questionnaires, powers
of attorney, indemnities, underwriting agreements and other usual and customary
documents necessary or appropriate with respect to the offering of such
Person's Registrable Securities, and in the case of a registration which is
underwritten, necessary or appropriate under the terms of such underwriting
arrangements (subject to the provision in Section 7(a) above).
8. DEFINITIONS.
(a) The term "INITIAL PUBLIC OFFERING" means the first
registered public offering of the Company's Common Stock by the Company under
the Securities Act with net proceeds to the Company of not less than $15
million.
(b) The term "INVESTOR REGISTRABLE SECURITIES" means all
Registrable Securities (i) initially issued by the Company to the Investor and
the other purchasers under the Purchase Agreement or the Recapitalization
Agreement and (ii) all other Registrable Securities subsequently acquired by
holders of Investor Registrable Securities. Investor Registrable Securities
will continue to be Investor Registrable Securities if held or acquired by any
holder of Registrable Securities other than a holder of Management Registrable
Securities.
(c) The term "MANAGEMENT AGREEMENT" means collectively those
certain Management Agreements dated March 30, 1998 between the Company and
Xxxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxxxxx Xxxxx and those certain option
agreements dated March 30, 1998 with Xxxxxx Xxxxxx.
(d) The term "MANAGEMENT REGISTRABLE SECURITIES" means all
Registrable Securities initially held by officers, directors or employees of
the Company, including those issued under any Management Agreement to Xxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxxxx. Management Registrable
Securities will continue to be Management Registrable Securities if held or
acquired by any holder of Registrable Securities other than a holder of
Investor Registrable Securities.
(e) The term "PERSON" means any individual, corporation,
partnership, joint venture, association, joint-stock company, limited liability
company, trust or unincorporated organization.
(f) The term "RECAPITALIZATION AGREEMENT" means that certain
Recapitalization Agreement dated March 18, 1998 among the Company, the Investor,
Allied Tours Holding Corp. and its shareholders.
(g) The term "REGISTRATION EXPENSES" has the meaning set forth
in Section 5 above.
(h) The term "REGISTRABLE SECURITIES" means (i) any Common Stock
issued pursuant to the Recapitalization Agreement, the Purchase Agreement, any
Management
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Agreement or any Seller Subscription Agreement (whether issued before or after
the date hereof), (ii) any other Common Stock issued or issuable with respect
to the securities referred to in clause (i) by way of a stock dividend or stock
split or in connection with an exchange or combination of shares,
recapitalization, merger, consolidation or other reorganization, and (iii) any
other shares of Common Stock held by Persons holding securities described in
clauses (i) and (ii), inclusive above, including, without limitation, any
shares of Common Stock issued upon conversion of the Company's preferred stock.
As to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when they have been distributed to the public pursuant
to a offering registered under the Securities Act or sold to the public through
a broker, dealer or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force). For purposes of this
Agreement, a Person shall be deemed to be a holder of Registrable Securities
whenever such Person has the right to acquire such Registrable Securities (upon
conversion of any capital stock or upon exercise of any options or warrants or
in connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
(i) The term "SECURITIES ACT" means the Securities Act of 1933,
as amended, or any similar federal law then in force.
(j) The term "SECURITIES EXCHANGE ACT" means the Securities
Exchange Act of 1934, as amended, or any similar federal law then in force.
(k) The term "SELLER REGISTRABLE SECURITIES" means all
Registrable Securities issued pursuant to a Seller Subscription Agreement or
held by any former stockholder of any business acquired by the Company
(initially this shall mean Allied Tours Holding Corp., Xxxxx X. Xxxxxx, Xxxxxxx
X. Xxxxxx and Xxxxx X. Xxxxxx). Seller Registrable Securities will continue to
be Seller Registrable Securities if held or acquired by any holder of
Registrable Securities other than a holder of Investor Registrable Securities
or Management Registrable Securities.
(l) The term "SELLER SUBSCRIPTION AGREEMENT" means any one of
the following: (i) that certain stock subscription agreement dated March 30,
1998 with Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx; (ii) that certain stock
subscription agreement dated May 4, 1998 with Xxxxx X. Xxxxxx; or (iii) any
other stock subscription agreement for the purchase of restricted capital stock
of the Company by Persons who are seller(s) of businesses acquired by the
Company where such Persons have executed a Joinder Agreement.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
- 12 -
13
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
shall not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration.
(c) REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
the provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the Investor. Notwithstanding the foregoing,
in the event that the Investor holds less than 30% of the Registrable
Securities held by the Investor on the date immediately following the closing
of the Initial Public Offering then any amendment or waiver shall be approved
by the Company and the holders of a majority of all Registrable Securities.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of,
and enforceable by, any subsequent holder of Registrable Securities.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(g) COUNTERPARTS; FACSIMILE TRANSMISSION. This Agreement may be
executed simultaneously in two or more counterparts, any one of which need not
contain the signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement. Each party to this
Agreement agrees that it will be bound by its own telecopied signature and that
it accepts the telecopied signature of each other party to this Agreement.
- 13 -
14
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York,
without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the
State of New York.
(j) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or 48 hours after deposited in the United States mail,
certified or registered to the recipient by postage prepaid or by facsimile.
Such notices, demands and other communications shall be sent to the Investor
and to each Shareholder at the addresses indicated on the Schedule of Holders
attached hereto and to the Company at the address of its corporate headquarters
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
(k) NEW PARTIES. During the term of this Agreement, the Company
may, with the consent of the Company's Board of Directors and the Investor,
allow other Persons to become parties to this Agreement by executing a Joinder
Agreement, and the Schedule of Holders attached hereto as Exhibit A shall be
revised and updated accordingly.
(l) TERMINATION OF AGREEMENT. All registration rights granted
hereunder will expire and this Agreement will be terminated at such time as (i)
90% of the Registrable Securities originally issued by the Company to the
Investor pursuant to the Purchase Agreement and the Recapitalization Agreement
have been sold to the public (either in an offering registered under the
Securities Act or pursuant to Rule 144 promulgated under the Securities Act),
and (ii) the average daily trading volume of the Common Stock over the
six-month period immediately preceding the termination is at least one-quarter
of one percent (1/4%) of the Company's outstanding Common Stock.
[THIS SPACE INTENTIONALLY LEFT BLANK]
- 14 -
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GLOBAL VACATION GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board
and Chief Executive Officer
XXXXXX EQUITY INVESTORS III, L.P.
By: TC Equity Partners, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Member
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
- 15 -
16
/s/ J. Xxxxxxx Xxxxx, Xx.
------------------------------------------
J. Xxxxxxx Xxxxx, Xx.
ALLIED TOURS HOLDING CORP.
/s/ Xxxxxxx Xxxxxx
------------------------------------------
By: Xxxxxxx Xxxxxx
Its:
--------------------------------------
TC CO-INVESTORS, LLC
By: TC Management LLC
By:/s/ Xxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Member
Xxxxxxxxx Family Limited Partnership
By:/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: General Partner
/s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------------
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxx
------------------------------------------
Xxxx X. Xxxx
/s/ Xxxx Xxxxx
------------------------------------------
Xxxx Xxxxx
/s/ Xxxxx X. Xxxxxxxx, III
------------------------------------------
Xxxxx X. Xxxxxxxx, III
- 16 -
17
Xxxxxxxxx Family Trust, dated June 27, 1986
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Trustee
Xxxxxx X. Xxxxxxxxx Revocable Trust
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxx
Trustee
/s/ Xxxxx Xxxx /s/ Xxxxxxxx Xxxx
------------------------------------------
Xxxxx Xxxx and Xxxxxxxx Xxxx
/s/ Xxxx X. Xxxxxx /s/ Mari Xxx Xxxxxxx
------------------------------------------
Xxxx X. Xxxxxx and Mari Xxx Xxxxxxx
/s/ Xxxxx XxXxxxx
------------------------------------------
Xxxxx XxXxxxx
/s/ Xxxxx X. XxXxxxxx
------------------------------------------
Xxxxx X. XxXxxxxx
PSERD Trust
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Trustee
/s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
- 17 -
18
/s/ Xxxxx X. Xxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx
- 18 -
19
EXHIBIT A TO
REGISTRATION AGREEMENT
SCHEDULE OF HOLDERS
INVESTOR:
Xxxxxx Equity Investors III, L.P.
c/x Xxxxxx Equity Partners
0000 Xxxxxxxxxxxx Xxxxxx, X.X.,
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx Xxxxxx
OTHER SHAREHOLDERS:
Xxxxx X. Xxxxxx Xxxxxx Xxxxxxx
c/o Global Vacation Group, Inc. c/o The Carlyle Group
0000 Xxx Xxxx Xxxxxx, XX, Xxxxx 000 0000 Xxxxxxxxxxxx Xxx., XX
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx TC Co-Investors, LLC
c/o Global Vacation Group, Inc. c/x Xxxxxx Capital Partners
0000 Xxx Xxxx Xxxxxx, XX, Xxxxx 000 0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000 Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx.
Partner Allied Tours Holding Corp.
Akin Gump c/o Global Vacation Group, Inc. -
0000 Xxx Xxxxxxxxx Xxx., XX Allied Division
Xxxxx 000 000 X. 00xx Xxxxxx
Xxxxxxxxxx, XX 00000 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxx X. Xxxx
Xxxxxxx Xxxxxxx Xxxxxxxxx Family Limited Partnership
0000 X Xx., XX, Xxxxx 000 c/o Xxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000 Chairman
Onex Food Services, Inc.
J. Xxxxxxx Xxxxx, Xx. 0000 Xxxx Xxxxxx Xxxxx
c/o Global Vacation Group, Inc. Xxxxxxxx, XX 00000
0000 Xxx Xxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
A-1
20
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxxxx, III
0 Xxxxxxxx Xxxx Chairman & CEO
Xxxxxx Xxxx, XX 00000 RRE Investors, LLC
000 Xxxx 00xx Xxxxxx, 00xx Xx.
Xxxx X. Xxxxxx and Xxxx Xxx Xxxxxxx Xxx Xxxx, XX 00000
0000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxxxxx Family Trust
dated June 27, 1986
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxxx
President & CEO Trustee
Software AG-Americas P.O. Box 100
00000 Xxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxx, XX 00000-0000
Xxxxxx, XX 00000-0000
Xxxxxx X. Xxxxxxxxx Revocable Trust
Xxxx Xxxxx Xxxxxx Xxxxxxxxx
X.X. Xxx 00 Xxxxxxx
Xxxxxxxx, XX 00000 48 Lessay
Xxxxxxx Xxxxx, XX 00000
Xxxxx XxXxxxxx
CFO Xxxxxxx X. Xxxxxx
Software AG-Americas 000 X. Xxxxxxxxxxx Xxxxxx
00000 Xxxxxxx Xxxxxx Xxxxx Xxx. 0000
Xxxxxx, XX 00000-0000 Xxxxxxxxxxxx, XX 00000
Xxxxx XxXxxxx Xxxxx X. Xxxxxxx
0000 X. Xxxx Xxxxxx 000 Xxxxxx Xxxx
Xxxxx 000 Xxxxxxxxxxxx, XX 00000
Xxx Xxxxxxx, XX 00000
Xxxxx X. and Xxxxxxxx Xxxx
Xxxxx X. Xxxxxx 0000 Xxxx Xxxxx
XXX Xxxxxxxxxxx XxXxxx, XX 00000
0000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxxx, XX 00000
Xxxxxx Xxxxxx
7 Harborage Island
Xxxx Xxxxxxxxxx, XX 00000
PSERD Trust, dated March 11, 1986
Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx,
Trustees
00000 Xxxxx Xxxx
Xxx Xxxxx Xxxxx, XX 00000
A-2
21
JOINDER AGREEMENT
TO REGISTRATION RIGHTS AGREEMENT
This Joinder Agreement (this "JOINDER AGREEMENT") is made as of the date
written below by the undersigned (the "JOINING PARTY") and the parties to the
Registration Rights Agreement, dated as of June 12, 1998 (the "REGISTRATION
AGREEMENT") among Global Vacation Group, Inc., Xxxxxx Equity Investors III, L.P.
and the Shareholders. Capitalized terms used but not defined herein shall have
the meanings given such terms in the Registration Agreement.
Accordingly, the Joining Party hereby acknowledges, agrees and confirms
that, by its execution of this Joinder Agreement, the Joining Party will be
deemed to be a party to the Registration Agreement and shall have all of the
obligations of a "SHAREHOLDER" thereunder as if such Joining Party had executed
the Registration Agreement. The Joining Party hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Registration Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement
as of the date written below.
Date: June 15, 1998
JOINING PARTY: 1995 XXXXXX GRANDCHILDREN'S
IRREVOCABLE DEED OF TRUST
Address:
c/o Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
The Xxxxxxxxxxx, Apt #2701 -------------------------
000 X. Xxxxxxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Xxxxxxxxxxxx, XX 00000 ------------------
Tel: (000) 000-0000 Title: Fiduciary of Trust
------------------
APPROVED BY:
XXXXXX EQUITY INVESTORS III, L.P.
By: TC Equity Partners, L.L.C.
Its: General Partner
By: [SIGNATURE APPEARS HERE]
---------------------------
Name:
----------------------
Its:
----------------------
22
JOINDER AGREEMENT
TO REGISTRATION RIGHTS AGREEMENT
This Joinder Agreement (this "JOINDER AGREEMENT") is made as of the
date written below by the undersigned (the "JOINING PARTY") and the parties to
the Registration Rights Agreement, dated as of June 12, 1998 (the "REGISTRATION
AGREEMENT") among Global Vacation Group, Inc., Xxxxxx Equity Investors III,
L.P. and the Shareholders. Capitalized terms used but not defined herein shall
have the meanings given such terms in the Registration Agreement.
Accordingly, the Joining Party hereby acknowledges, agrees and confirms
that, by its execution of this Joinder Agreement, the Joining Party will be
deemed to be a party to the Registration Agreement and shall have all of the
obligations of a "SHAREHOLDER" thereunder as if such Joining Party had executed
the Registration Agreement. The Joining Party hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Registration Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement
as of the date written below.
Date: June 15, 1998
JOINING PARTY: XXXXX XXXXXX TRUST
FBO XXXXXX XXXXXX
Address:
c/o Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
0 Xxxxxxxx Xxxx ----------------------
Xxxxxx Xxxx, XX 00000 Name: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000 ----------------------
Tax I.D. No.: Title: Trustee
----------------------- ----------------------
APPROVED BY:
XXXXXX EQUITY INVESTORS III, L.P.
By: TC Equity Partners, L.L.C.
Its: General Partner
By: [SIGNATURE APPEARS HERE]
-----------------------------
Name:
------------------------
Its:
------------------------
23
JOINDER AGREEMENT
TO REGISTRATION RIGHTS AGREEMENT
This Joinder Agreement (this "JOINDER AGREEMENT") is made as of the date
written below by the undersigned (the "JOINING PARTY") and the parties to the
Registration Rights Agreement, dated as of June 12, 1998 (the "REGISTRATION
AGREEMENT") among Global Vacation Group, Inc., Xxxxxx Equity Investors III, L.P.
and the Shareholders. Capitalized terms used but not defined herein shall have
the meanings given such terms in the Registration Agreement.
Accordingly, the Joining Party hereby acknowledges, agrees and confirms
that, by its execution of this Joinder Agreement, the Joining Party will be
deemed to be a party to the Registration Agreement and shall have all of the
obligations of a "SHAREHOLDER" thereunder as if such Joining Party had executed
the Registration Agreement. The Joining Party hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Registration Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement
as of the date written below.
Date: June 15, 1998
JOINING PARTY: XXXXX XXXXXX TRUST
FBO XXXXX XXXXXX
Address:
c/o Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
0 Xxxxxxxx Xxxx -------------------------
Xxxxxx Xxxx, XX 00000 Name: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000 ------------------
Tax I.D. No.: Title: Trustee
----------------------- ------------------
APPROVED BY:
XXXXXX EQUITY INVESTORS III, L.P.
By: TC Equity Partners, L.L.C.
Its: General Partner
By: [SIGNATURE APPEARS HERE]
---------------------------
Name:
----------------------
Its:
----------------------
24
JOINDER AGREEMENT
TO REGISTRATION RIGHTS AGREEMENT
This Joinder Agreement (this "JOINDER AGREEMENT") is made as of the date
written below by the undersigned (the "JOINING PARTY") and the parties to the
Registration Rights Agreement, dated as of June 12, 1998 (the "REGISTRATION
AGREEMENT") among Global Vacation Group, Inc., Xxxxxx Equity Investors III, L.P.
and the Shareholders. Capitalized terms used but not defined herein shall have
the meanings given such terms in the Registration Agreement.
Accordingly, the Joining Party hereby acknowledges, agrees and confirms
that, by its execution of this Joinder Agreement, the Joining Party will be
deemed to be a party to the Registration Agreement and shall have all of the
obligations of a "SHAREHOLDER" thereunder as if such Joining Party had executed
the Registration Agreement. The Joining Party hereby ratifies, as of the date
hereof, and agrees to be bound by, all of the terms, provisions and conditions
contained in the Registration Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement
as of the date written below.
Date: June 15, 1998
JOINING PARTY: XXXXX XXXXXX TRUST
FBO XXXXXX GRANDCHILDREN
Address:
c/o Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
0 Xxxxxxxx Xxxx -----------------------------
Xxxxxx Xxxx, XX 00000 Name: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000 ----------------------
Tax I.D. No.: Title: Trustee
--------------------- ----------------------
APPROVED BY:
XXXXXX EQUITY INVESTORS III, L.P.
By: TC Equity Partners, L.L.C.
Its: General Partner
By: [SIGNATURE APPEARS HERE]
-----------------------------
Name:
-----------------------
Its:
-----------------------