EXHIBIT II
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement")
is made and entered into as of August 22, 2002 by and among URS
Corporation, a Delaware corporation (the "Corporation"), Xxxx
Strategic Partners, L.P. ("Xxxx Strategic"), Xxxx Capital
Partners, L.P. ("Xxxx Capital" and, together with Xxxx Strategic,
"Xxxx") and Carlyle-EG&G, L.L.C. ("EG&G") and EG&G Technical
Services Holdings, L.L.C. (the "Holder Representative" and
together with EG&G, "Carlyle").
Whereas, the Corporation and Affiliates of Xxxx were
party to that certain Registration Rights Agreement dated February
21, 1990, and whereas the Corporation and Affiliates of Xxxx were
parties to that certain Registration Rights Agreement dated June
9, 1999;
Whereas, the Corporation and the Holder Representative
are parties to an Agreement and Plan of Merger, dated as of July
16, 2002 pursuant to which the Corporation is issuing Common Stock
and Series D Senior Convertible Participating Preferred Stock to
Carlyle and other individuals;
Whereas, in order to induce Carlyle to consummate the
transactions contemplated by the Agreement and Plan of Merger, the
Corporation and Xxxx have agreed to enter into this Agreement to
provide the registration rights set forth in this Agreement for
the benefit of Xxxx, Xxxxxxx and their direct and indirect
transferees;
Whereas, the execution and delivery of this Agreement is
a condition to Carlyle's obligations pursuant to the Agreement and
Plan of Merger.
Now, Therefore, in consideration of the premises and of
the respective representations, warranties, covenants, agreements
and conditions contained herein, each of the Corporation, Xxxx and
Carlyle (together "Parties") agree as follows:
Section 1. Definitions. For purposes of this
Agreement, the following terms shall have the following respective
meanings:
Affiliate: An affiliate of any specified person shall
mean any other person directly or indirectly controlling or
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 "affiliated," "controlling"
and "controlled" have meanings correlative to the foregoing.
Xxxx Cutback Percentage: 50%.
Xxxx Holders: Xxxx, any Affiliate of Xxxx or account
for which Xxxx (or its Affiliates) has investment discretion which
is a holder of Registrable Securities as of the date of this
Agreement and any other person or entity to whom any of the
foregoing may transfer the rights described in this Agreement.
Business Day: Each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New
York, New York are authorized or obligated by law or executive
order to close.
Carlyle Cutback Percentage: 50%.
Carlyle Holders: Carlyle, the other holders of
Registrable Securities other than the Xxxx Holders and any other
person or entity to whom any of the foregoing may transfer the
rights described in this Agreement.
Closing Date: The date of the Closing, as such term is
defined in the Agreement and Plan of Merger.
Common Stock: The common stock, par value $0.01 per
share, of the Corporation or shares of any class or classes
resulting from any reclassification or reclassifications thereof
and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation and which are not
subject to redemption by the Corporation.
Corporation: URS Corporation, a Delaware corporation,
and any successor entity thereto.
Cutback: Cutback is defined below in Section 2(f).
Distributee: Any person that is a member, stockholder
or partner of any of the Holders or any person that is a member,
stockholder or partner of a Distributee to which Registrable
Securities are transferred or distributed by a Holder or
Distributee.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC
thereunder.
Form S-1: Such form under the Securities Act in effect
on the date hereof or such registration form under the Securities
Act subsequently adopted by the SEC which replaces such form.
Form S-3: Such form under the Securities Act in effect
on the date hereof or such registration form under the Securities
Act subsequently adopted by the SEC which replaces such form.
Form S-4: Such form under the Securities Act in effect
on the date hereof or such registration form under the Securities
Act subsequently adopted by the SEC which replaces such form.
Holder: Xxxx Holders, Carlyle Holders and each holder
of any Registrable Securities, including an Affiliate, a
Distributee or other successors, assigns and transferees of a
Holder or a Holder that has received Registrable Securities
pursuant to Section 9(f) and agrees to be bound by the terms of
this Agreement.
NASD: The National Association of Securities Dealers.
NYSE: The New York Stock Exchange.
Person: Any natural person, firm, partnership,
association, corporation, company, trust, business trust,
governmental entity or other entity.
Prospectus: The prospectus included in the Registration
Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed
in reliance upon Rule 430A), as amended or supplemented by any
prospectus supplement, with respect to the resale of any of the
Registrable Securities covered by such Registration Statement, and
all other amendments and supplements to any such prospectus,
including post-effective amendments, and all materials
incorporated by reference or deemed to be incorporated by
reference, if any, in such prospectus.
Registrable Securities: Registrable Securities include:
(a) 1,856,440 shares of Common Stock held through partnerships or
managed accounts for which Xxxx Capital is the General Partner or
Investment Advisor; (b) 5,845,104 shares of Common Stock issued to
Xxxx upon conversion of all outstanding shares of Series B
Exchangeable Convertible Preferred Stock issued under the
Securities Purchase Agreement, dated June 9, 1999; (c) Common
Stock issued pursuant to the Merger Agreement; (d) Common Stock
issuable upon conversion of the Corporation's Series D Senior
Convertible Participating Preferred Stock (the "Series D Preferred
Stock"); (e) in the event such shares of Series D Preferred Stock
are converted into Series E Senior Cumulative Convertible
Participating Preferred Stock (the "Series E Preferred Stock"),
such shares of Series E Preferred Stock; (f) Common Stock issuable
upon conversion of the Series E Preferred Stock; and (g) any other
securities issued or issuable with respect to any of the
securities described in the foregoing clauses (a) through (f) upon
any conversion or exchange thereof, by way of stock dividend or
other distribution, stock split or reverse stock split of in
connection with a combination of shares, recapitalization, merger,
consolidation, exchange offer or other reorganization.
As to any particular Registrable Securities once issued,
such securities shall cease to be Registrable Securities when:
(A) a Registration Statement with respect to the sale of such
securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with
such Registration Statement; (B) such securities shall have been
distributed to the public in reliance upon Rule 144; (C) such
securities shall have been acquired by the Corporation; or (D)
such securities shall have been sold in a private transaction in
which the transferor's rights under this Agreement were not
assigned.
Registration Expenses: All fees and expenses incident
to the performance of or compliance with the provisions of this
Agreement, whether or not any Registration Statement is filed or
becomes effective, including without limitation, all (a)
registration and filing fees (including without limitation, (i)
fees with respect to filings required to be made with the NASD in
connection with an underwritten offering, (ii) fees and expenses
of compliance with state securities or blue sky laws and (iii)
fees and other expenses associated with admitting for trading on
the NYSE or any other applicable exchange or automated dealer
system); (b) printing expenses; (c) fees and disbursements of all
independent certified public accountants (including, without
limitation, the reasonable expenses of any special audit and "cold
comfort" letters required by or incident to such performance); (d)
the fees and expenses of any "qualified independent underwriter"
or other independent appraiser participating in an offering
pursuant to Rule 2720 of the NASD Rules of Conduct; (e) fees and
expenses of all attorneys, advisers, appraisers and other persons
retained by the Corporation or any Subsidiary of the Corporation;
(f) internal expenses of the Corporation and its Subsidiaries; (g)
the expenses of any annual audit; (h) the expenses relating to
printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply
with this agreement; (i) if any of the Xxxx Holders are selling
Registrable Securities in such registration, the reasonable out-
of-pocket expenses and, as to in-house counsel, allocated costs of
the Xxxx Holders of Registrable Securities being registered in
such registration incurred therewith including, without
limitation, the reasonable fees and disbursements of not more than
one outside counsel and one in-house counsel (who may be employed
by an Affiliate of a Holder) for the Xxxx Holders chosen by the
Xxxx Holders holding a majority of the Registrable Securities of
Xxxx Holders to be included in such Registration Statement; and
(j) if any of the Carlyle Holders are selling Registrable
Securities in such registration, the reasonable out-of-pocket
expenses and, as to in-house counsel, allocated costs of the
Carlyle Holders of the Registrable Securities being registered in
such registration incurred therewith including, without
limitation, the reasonable fees and disbursements of not more than
one outside counsel and one in-house counsel (who may be employed
by an Affiliate of a Holder) for the Carlyle Holders chosen by the
Carlyle Holders holding a majority of the Registrable Securities
of Carlyle Holders to be included in such Registration Statement.
"Registration Expenses" shall not include any underwriting
discounts or commissions or any transfer taxes payable in respect
of the sale of Registrable Securities, which such expenses shall
be paid or borne by the Holders thereof, nor shall "Registration
Expenses" include any fees or expenses incurred by or on behalf of
any Holder who, without cause, either withdraws a request for
registration or withdraws from a registration.
Registration Statement: Any registration statement of
the Corporation filed with the SEC pursuant to the Securities Act
(which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of
distribution thereof and shall include all financial statements
required by the SEC to be filed therewith) that covers the resale
of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to
such registration statement or Prospectus (including pre- and
post-effective amendments), all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement.
Requesting Holder: Any Holder that initiates a request
for registration hereunder.
Rule 144: Rule 144 promulgated by the SEC pursuant to
the Securities Act, as such rule may be amended from time to time,
or any successor rule or regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant
to the Securities Act, as such rule may be amended from time to
time, or any successor rule or regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to
the Securities Act, as such rule may be amended from time to time,
or any successor rule or regulation.
Rule 430A: Rule 430A promulgated by the SEC pursuant to
the Securities Act, as such rule may be amended from time to time,
or any successor rule or regulation.
SEC: The Securities and Exchange Commission, or any
successor governmental agency or authority thereto.
Securities Act: The Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Special Registration: The registration of shares of
equity securities and/or options or other rights in respect
thereof to be offered solely to or by directors, members of
management, employees, consultants or sales agents, distributors
or similar representatives of the Corporation or its direct or
indirect Subsidiaries, solely on Form S-8 or any successor form.
Subsidiary: With respect to any Person, any corporation
or Person, a majority of the outstanding voting stock or other
equity interests of which is held, directly or indirectly, by that
Person.
Section 2. Demand Registration.
(a) Requests by Xxxx Holder. Subject to
the provisions of Section 2(c)(ii), Xxxx Holders holding not less
than 50% of the then-outstanding Registrable Securities held by
all Xxxx Holders shall have the right to make written requests
that the Corporation effect registrations under the Securities Act
of all or part of the Registrable Securities of such Xxxx Holders,
which requests shall specify the intended method of disposition
thereof by such Xxxx Holders, including whether the registration
requested is for an underwritten offering. For a registration to
be underwritten, Requesting Holders holding not less than 50% of
the Registrable Securities held by all Requesting Holders must so
request. The Corporation shall not be required to effect more
than four registrations under this Section 2(a).
(b) Requests by Xxxxxxx Xxxxxx. Subject
to the provisions of Section 2(c)(ii), Carlyle Holders holding not
less than 50% of the then-outstanding Registrable Securities held
by all Carlyle Holders shall have the right to make written
requests that the Corporation effect registrations under the
Securities Act of all or part of the Registrable Securities of
such Carlyle Holders, which requests shall specify the intended
method of disposition thereof by such Carlyle Holders, including
whether the registration requested is for an underwritten
offering. For a registration to be underwritten, Requesting
Holders holding not less than 50% of the Registrable Securities
held by all Requesting Holders must so request. The Corporation
shall not be required to effect more than three registrations
under this Section 2(b).
(c) Obligation to Effect Registration.
(i) Within 10 business days after receipt
by the Corporation of any request for registration pursuant to
Section 2(a) or 2(b), the Corporation shall give written notice of
such requested registration to all Holders, and as expeditiously
as possible will use its best efforts to effect the registration
under the Securities Act of:
(1) the Registrable Securities
which the Corporation has been so requested to register pursuant
to Section 2(a) or 2(b); and
(2) all other Registrable
Securities which the Corporation has been requested to register by
any other Holders thereof by written request given to the
Corporation within 10 days after the Corporation has given such
written notice.
(ii) The Corporation's obligations under
Sections 2(a) and 2(b) shall be subject to the following
limitations:
(1) the Corporation shall not be
required to effect a registration during the period starting with
the date of filing of, and ending on the date 180 days following
the effective date of, the registration statement pertaining to a
public offering by the Corporation so long as the Holders are
permitted to register and sell in such offering all such
Registrable Securities as they have requested be included in such
offering without cutback under Section 2(f); provided, that, (i)
the Corporation may not decline to register shares pursuant to
this clause (1) more than once every two years (such time period
to commence upon the expiration of the end of the 180-day period
referred to above) and (ii) the Corporation may not decline to
register shares pursuant to this clause (1) at any time prior to
six (6) months after the date hereof unless the Corporation is
effecting such registration in order to refinance the Bridge Loans
(as defined in the Commitment Letters (as defined in the Merger
Agreement)); and
(2) the Corporation shall not be
required to effect a registration on Form S-1 if it has filed and
has maintained an effective "shelf' Registration Statement on Form
S-3 pursuant to Section 4(d) and such Form S-3 is effective and
permitted to be used by the Requesting Holders to sell all of the
Registrable Securities such Requesting Holders wish to sell.
(d) Effective Registration Statement. A
registration requested pursuant to Section 2(a) or 2(b) shall not
be deemed to have been effected unless it is declared effective by
the SEC and remains effective for the period specified in Section
5(b). Notwithstanding the preceding sentence, a registration
requested pursuant to Section 2(a) or 2(b) that does not become
effective after the Corporation has filed a Registration Statement
with respect thereto by reason of the refusal to proceed of the
Requesting Holders without cause, or by reason of a request by a
majority of the Requesting Holders participating in such
registration that such registration be withdrawn, shall be deemed
to have been effected by the Corporation at the request of such
Requesting Holders.
(e) Inclusion of Other Securities.
Notwithstanding any other provision of this Section 2:
(i) The Corporation may, subject to the
remainder of this Section 2(e) and subject to Section 2(f), elect
to include in any Registration Statement made pursuant to Section
2(a) or 2(b), authorized but unissued shares of Common Stock or
shares of Common Stock held as treasury stock; and
(ii) The Corporation shall not register
securities (other than Registrable Securities) for sale for the
account of any Person (other than the Corporation or the Holders)
in any registration requested pursuant to Section 2(a) or 2(b).
(f) Cutbacks and Allocation of Opportunity to
Register Securities. If any Registration Statement made pursuant
to Section 2(a) or 2(b) involves an underwritten offering and if
the underwriter advises the Requesting Holder in writing that
marketing factors require a limitation of the number of shares to
be underwritten (a "Cutback"), then the Requesting Holder shall so
advise the Corporation which shall advise all Holders of
Registrable Securities which would otherwise be underwritten
pursuant thereto, and the number of shares of Registrable
Securities that may be included in the underwriting shall be
allocated among all participating Holders thereof as follows: (i)
the Xxxx Holders as a group shall be entitled to the Xxxx Cutback
Percentage of the Registrable Securities actually sold in the
offering and (ii) the Carlyle Holders as a group shall be entitled
to sell the Carlyle Cutback Percentage of the Registrable
Securities actually sold in the offering; provided, however, that,
to the extent that the number of shares the Xxxx Holders or the
Carlyle Holders, as a group, are entitled to register pursuant to
this sentence exceeds the number that such group of holders
actually seeks to register, then such excess shall be added to the
number of shares that the Carlyle Holders or the Xxxx Holders,
respectively, shall be entitled to register.
Section 3. Registration by the Corporation.
(a) Procedure. If the Corporation at any
time proposes to register any of its Common Stock under the
Securities Act (other than a Registration on Form S-4 with respect
to any merger, consolidation or acquisition, a demand registration
pursuant to Section 2(a) or 2(b) or pursuant to a Special
Registration), whether or not for sale for its own account, and
the registration form to be used may be used for the registration
of Registrable Securities, it shall each such time give prompt
written notice to all Holders of Registrable Securities. Upon the
written request of any Holder of Registrable Securities given to
the Corporation within 10 business days after the Corporation has
given any such notice, the Corporation will use its best efforts
to effect the registration under the Securities Act of all
Registrable Securities requested by the Holders thereof to be
included registered, provided that:
(i) 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 Corporation shall determine
for any reason not to register such securities, the Corporation
may, at its election, give written notice of such determination to
each Holder that was previously notified of such registration and,
thereupon, shall not register any securities (including
Registrable Securities) in connection with such registration (but
shall nevertheless pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any
Holders to request that a registration be effected under Section
2(a) or 2(b).
(b) Cutbacks and Allocation of Opportunity to
Register Securities. If any Registration Statement made pursuant
to this Section 3 involves an underwritten offering and if the
underwriter advises the Corporation in writing that marketing
factors require a Cutback, then the Corporation shall advise the
Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting
shall be allocated among all participating Holders thereof and the
Corporation as follows:
(i) The Corporation shall be entitled to
sell 80% of the Registrable Securities actually sold in the
offering; and;
(ii) The Requesting Holders shall be
entitled to sell 20% of the Registrable Securities actually sold
in the offering, allocated according to the Xxxx Cutback
Percentage and the Carlyle Cutback Percentage; provided, however,
that, to the extent that the number of shares the Xxxx Holders or
the Carlyle Holders, as a group, are entitled to register pursuant
to this sentence exceeds the number that such group of holders
actually seeks to register, then such excess shall be added to the
number of shares that the Carlyle Holders or the Xxxx Holders,
respectively, shall be entitled to register.
(c) No registration effected under this Section 3
shall relieve the Corporation of its obligation to effect
registrations upon request under Section 2(a) or 2(b). If the
offering by the Corporation is not underwritten, the Corporation
shall not be obligated to cause any piggyback registration under
this Section 3 to be underwritten.
Section 4. Form S-3 Registrations. In case the
Corporation shall receive from any Holder or Holders of
Registrable Securities a written request or requests that the
Corporation effect a registration on Form S-3 or any similar
short-form registration statement and any related qualification or
compliance with respect to all or a part of the Registrable
Securities held by such Holder or Holders, the Corporation will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other Holders of Registrable Securities; and
(b) as expeditiously as possible, effect such
registration and all such qualifications and compliances as may be
so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holder's or Holders'
Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any
other Holder or Holders joining in such request as are specified
in a written request given within 10 days after receipt of such
written notice from the Corporation; provided, however, that the
Corporation shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section
4:
(i) if Form S-3 is not available for such
offering by the Holders;
(ii) if the Holders, together with the holders
of any other securities of the Corporation entitled to inclusion
in such registration, propose to sell Registrable Securities and
such other securities (if any) at an aggregate price to the public
of less than $5,000,000;
(iii) if within 30 days of receipt of a written
request from any Holder or Holders pursuant to this Section 4, the
Corporation gives notice to such Holder or Holders of the
Corporation's bona fide intention to make a public offering within
90 days; provided, that (i) the Corporation may only give such
notice once in any 12-month period and (ii) the Corporation may
not decline to register shares pursuant to this clause (iii) at
any time prior to six (6) months after the date hereof unless the
Corporation is effecting such registration in order to refinance
the Bridge Loans (as defined in the Commitment Letters (as defined
in the Merger Agreement));
(iv) if the Corporation has, within the 90-day
period preceding date of such request, effected a Corporation-
initiated registration (other than a Special Registration); or
(v) in any particular jurisdiction in which the
Corporation would be required to qualify to do business or to
execute a general consent to service of process in effecting such
registration, qualification or compliance.
(c) Subject to the foregoing, the corporation shall
file a Form S-3 registration statement covering the Registrable
Securities and other securities so requested to be registered as
expeditiously as possible after receipt of the request or
requests of the Holders.
(d) If requested and if the Corporation is
eligible to file such Registration Statement on Form S-3, the
Registration Statement filed under this Section 4 shall provide
for the sale by the Holders thereof of the Registrable Securities
from time to time on a delayed or a continuous basis under Rule
415 under the Securities Act.
(e) Registrations effected pursuant to this
Section 4 shall not be counted as demands for registration
pursuant to Section 2 or registrations by the Corporation pursuant
to Section 3; provided, however, that if such registration
includes an underwritten offering, it shall constitute a separate
"demand" registration for purposes of Section 2(a) and 2(b).
Section 5. Registration Procedures. The Corporation
shall pay all Registration Expenses in connection with each
registration of Registrable Securities pursuant to this Agreement.
If and whenever the Corporation is required to effect or use its
best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 2, 3
and 4, the Corporation shall:
(a) Furnish to the Holders and the managing
underwriters, if any, copies of all such documents proposed to be
filed (excluding, unless requested, those documents incorporated
or deemed to be incorporated by reference and then only to the
Holder who so requested) and use its commercially reasonable
efforts to reflect in each such document, when so filed with the
SEC, such comments as the Holders may reasonably propose. The
Corporation shall not file any such Registration Statement or
related Prospectus or any amendments or supplements thereto
(excluding any document that would be incorporated or deemed
incorporated by reference) to which the Holder or the managing
underwriters, if any, shall reasonably object in writing (by hand-
delivery, courier guaranteeing overnight delivery or telecopy)
within five Business Days after the receipt of such documents.
Notwithstanding the foregoing, the Corporation shall not be
required to furnish to the Holders or the managing underwriters,
if any, any amendments or supplements to the Registration
Statement or Prospectus filed solely to reflect changes to the
Registrable Securities held by any particular Holder or immaterial
revisions to the information contained therein.
(b) Prepare and file with the SEC such amendments,
including post-effective amendments, and supplements to such
Registration Statement and the Prospectus used in connection
therewith and such other documents as may be necessary to keep
such Registration Statement effective, and comply with the
provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement in
accordance with the intended method or methods of disposition by
the sellers thereof set forth in such Registration Statement or
Prospectus, as so amended and supplemented, until the earlier of:
(i) 60 days after the effective date of such Registration
Statement (720 days in the case of a Shelf Registration pursuant
to Section 4(d)) or (ii) the consummation of the disposition by
the Holders of all the Registrable Securities covered by such
Registration Statement and otherwise comply with the provisions of
the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(c) Notify the Holders and the managing
underwriters, if any, promptly and, if requested by any such
person, confirm such notice in writing:
(i) (1) when a Prospectus or any
Prospectus supplement or post-effective amendment is proposed to
be filed and (2) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective;
(ii) of any written comments from the SEC
with respect to any filing and of any request by the SEC or any
other Federal or state governmental authority for amendments or
supplements to such Registration Statement or related Prospectus
or for additional information related thereto;
(iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court
of any stop order, order or injunction suspending or enjoining
the use or effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Corporation of any
notification with respect to the suspension of qualification or
exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose;
(v) of the existence of any fact or the
happening of any event during the period of effectiveness that
makes any statement of material fact made in such Registration
Statement or related Prospectus untrue in any material respect, or
that requires the making of any changes in such Registration
Statement or Prospectus so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
and that, in the case of the Prospectus, such Prospectus will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; and
(vi) of the determination by the Corporation
that a post-effective amendment to the Registration Statement will
be filed with the SEC.
(d) Use commercially reasonable efforts to
obtain the withdrawal of any stop order or order enjoining or
suspending the use or effectiveness of a Registration Statement or
the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale
in any jurisdiction, at the earliest practicable moment.
(e) If requested by the Requesting Holders, or
managing underwriters, if any, to:
(i) promptly include in a Prospectus
supplement or post-effective amendment such information as the
Requesting Holders or managing underwriters, if any, may
reasonably request to be included therein; and
(ii) make all required filings of such
Prospectus supplement or such post-effective amendment as
expeditiously as possible after the Corporation has received
notification of the matters to be included in such Prospectus
supplement or post-effective amendment.
(f) Furnish to each Holder who so requests, and
each managing underwriter, if any, without charge, at least one
copy of the Registration Statement and each amendment thereto (but
excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits, unless
requested in writing by such Holder or any managing underwriter
and then only to the person who so requested).
(g) Deliver to each Holder and the underwriters,
if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of Prospectus) and each
amendment or supplement thereto as such persons may request; and,
unless the Corporation shall have given notice to such Holder or
underwriter pursuant to Section 5(c)(v) hereof, the Corporation
hereby consents to the use of such Prospectus, and each amendment
or supplement thereto, by each of the selling Holders of
Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered
by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, use all reasonable efforts to register or qualify, or
cooperate with the Holders of Registrable Securities to be sold or
tendered or the underwriters, if any, and their respective counsel
in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any Holder
or underwriter reasonably requests in writing, keep each such
registration or qualification (or exemption therefrom) effective
during the period the Registration Statement is required to be
kept effective and do any and all other acts or things legally
necessary to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement;
provided, however, that the Corporation shall not be required to
qualify generally to do business in any jurisdiction where it is
not then so qualified, take any action that would subject it to
general service of process in any such jurisdiction where it is
not then so subject or subject the Corporation to any tax in any
such jurisdiction where it is not then so subject.
(i) In connection with any sale or transfer of
Registrable Securities that will result in such securities no
longer being Registrable Securities, cooperate with the Holders
and the managing underwriters, if any, to (1) facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold (unless the same shall be in
book-entry form), which certificates shall not bear any
restrictive legends, unless required by applicable securities
laws, shall bear a CUSIP number different from the CUSIP number
for the Registrable Securities and shall be in a form eligible for
deposit with the Depositary Trust Corporation, and (2) enable such
Registrable Securities to be in such denominations and registered
in such names as the managing underwriters, if any, or Holders may
request at least two Business Days prior to any sale of
Registrable Securities.
(j) Use best efforts to cause the offering of the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities within the United States as may be necessary to enable
the Holder or managing underwriter, if any, to consummate the
disposition of such Registrable Securities; provided, however,
that the Corporation shall not be required to register the
Registrable Securities in any jurisdiction that would require the
Corporation to qualify to do business in any jurisdiction where it
is not then so qualified, subject it to general service of process
in any such jurisdiction where it is not then so subject or
subject the Corporation to any tax in any such jurisdiction where
it is not then so subject.
(k) Upon the occurrence of any event contemplated
by Section 5(c)(v) hereof, as expeditiously as possible, prepare a
supplement or amendment, including, if appropriate, a post-
effective amendment, to the Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, and file any other
required document so that, as thereafter delivered, such
Prospectus will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the
Registration Statement relating to the Registrable Securities, to
provide a CUSIP number for the Registrable Securities to be sold
pursuant to the Registration Statement.
(m) Enter into such agreements (including any
underwriting agreements in form, scope and substance as may be
reasonably requested and as are customary in underwritten
offerings) and take all such other appropriate actions in
connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority in
interest of the Registrable Securities being sold) in order to
expedite or facilitate the sale of such Registrable Securities,
including, without limitation, reasonable participation of senior
management in a "road show." In connection with any underwritten
offering, the Corporation will:
(i) make such representations and
warranties to the Holders of such Registrable Securities and the
underwriters, if any, with respect to the business of the
Corporation and its Subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them),
and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in
each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the
same if and when requested;
(ii) obtain, as may reasonably be required,
opinions of counsel to the Corporation (which may include in-house
counsel) and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any), addressed to each selling Holder
of Registrable Securities and each of the underwriters, if any,
covering the matters customarily covered in opinions requested in
underwritten offerings (including any such matters as may be
reasonably requested by such underwriters);
(iii) obtain, as may reasonably be required,
customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Corporation (and,
if necessary, any other independent certified public accountants
of any Subsidiary of the Corporation or of any business acquired
by the Corporation for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed (where reasonably possible) to each selling
Holder of Registrable Securities and each of the underwriters, if
any, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; and
(iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a
majority in interest of the Registrable Securities being sold or
the managing underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant to
clause (i) of this Section 5(m) and to evidence compliance with
any customary conditions contained in the underwriting agreement
or other agreement entered into by the Corporation;
(n) Make available for inspection by a
representative of the Holders of Registrable Securities being
sold, any underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney, consultant or
accountant retained by such selling Holders or underwriter, at the
offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and
properties of the Corporation and its Subsidiaries (other than
records and documents that the Corporation and its Subsidiaries
agreed contractually not to disclose and the disclosure of which
would violate any such contractual agreement) as they may
reasonably request, and cause the officers, directors, agents and
employees of the Corporation and its Subsidiaries to supply all
information (other than information that the Corporation and its
Subsidiaries agreed contractually not to disclose and the
disclosure of which would violate any such contractual agreement)
in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with
such Registration Statement and as shall be reasonably necessary
to enable such persons to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Holders and the other
parties thereto by one counsel designated by and on behalf of such
Holders and other parties.
(o) Use all reasonable efforts to cause any
Registrable Securities included in the registration, to the extent
such Registrable Securities are not already so listed, to be
admitted for trading on the NYSE (or such other exchange or
automated trading system as shall be the primary trading system or
exchange for the Common Stock).
(p) Have the right, if the Board of Directors of
the Corporation, in its good faith judgment, determines that any
registration of shares of Common Stock should not be made or
continued because it would materially interfere with any material
financing, acquisition, corporation reorganization, merger, or
other transaction involving the Corporation or any of its
Subsidiaries, or would require premature disclosure of material
non-public information (a "Valid Business Reason"): (i) to
postpone filing a Registration Statement until such Valid Business
Reason no longer exists, but in no event for more than 180 days,
and (ii) to cause any Registration Statement that has already been
filed to be withdrawn and its effectiveness terminated or to
postpone amending or supplementing such Registration Statement
until such Valid Business Reason no longer exists, but in no event
for more than 90 days (the "Postponement Period"); provided,
however, that in no event shall the Corporation be permitted to
postpone or withdraw a Registration Statement within 12 months
after the expiration of the most recent Postponement Period.
(q) Have the right to require each Holder
of any Registrable Securities as to which any registration is
being effected to furnish to the Corporation such information
regarding such Holder and the distribution of such securities as
the Corporation may from time to time reasonably request in
writing and as shall be required by law in connection therewith.
Each such Holder agrees to furnish promptly to the Corporation all
information required to be disclosed in order to make the
information previously furnished to the Corporation by such Holder
not materially misleading. The Corporation agrees not to file or
make any amendment to any Registration Statement with respect to
any Registrable Securities, or any amendment of or supplement to
the Prospectus used in connection therewith, which refers to any
seller of any securities covered thereby by name, or otherwise
identifies such seller as the holder of any securities of the
Corporation, without the consent of such seller, such consent not
to be unreasonably withheld, except that no such consent shall be
required for any disclosure that is required by law. By the
acquisition of Registrable Securities, each Holder shall be deemed
to have agreed that upon receipt of any notice from the
Corporation pursuant to Section 5(c) or 5(p), such Holder will
promptly discontinue such Holder's disposition of Registrable
Securities pursuant to the Registration Statement covering such
Registrable Securities until such Holder shall have received: (i)
in the case of Section 5(c), notice from the Corporation that such
Registration Statement has been amended, and copies of the
supplemented or amended Prospectus, as contemplated by Section
5(c)(i); or (ii) in the case of Section 5(p), the time period
specified has elapsed or such Holder has received notice from the
Corporation that the Postponement Period has been terminated. If
so directed by the Corporation, each Holder will deliver to the
Corporation (at the Corporation's expense) all copies, other than
permanent file copies, in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of
receipt of such notice. In the event that the Corporation shall
give any such notice, the period mentioned in Section 5(b) shall
be extended by the number of days during the period from and
including the date of the giving of such notice to and including
the date when each seller of any Registrable Securities covered by
such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section
5(c)(i).
Section 6. Indemnification.
(a) The Corporation agrees to indemnify and hold
harmless each Holder of Registrable Securities, such Holder's
Affiliates, and their respective officers, directors, employees,
representatives and agents and each Person, if any, who controls
any Holder of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any and all loss, liability, claim or damage arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim or damage
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
written information furnished to the Corporation by or on behalf
of such Holder of Registrable Securities (which also acknowledges
the indemnity provisions herein) or any person, if any, who
controls any such Holder of Registrable Securities expressly for
use in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); provided, further, that this indemnity
agreement shall not apply to any loss, liability, claim or damage
if the Holder fails to deliver at or prior to the written
confirmation of sale, the most recent Prospectus, as amended or
supplemented, and such Prospectus, as amended or supplemented,
would have corrected such untrue statement or omission or alleged
untrue statement or omission of a material fact (provided that the
Corporation has delivered to such Holder, or otherwise given
notice to such Holder of the existence of, such most recent
Prospectus, as supplemented or amended). Any amounts advanced by
the Corporation to an indemnified party pursuant to this Agreement
shall be returned to the Corporation if it shall be finally
determined in a judgment by a court of competent jurisdiction not
subject to appeal, that such indemnified party was not entitled to
indemnification.
(b) In connection with the preparation of the
Registration Statement in which a Holder of Registrable Securities
is participating in furnishing information relating to such Holder
of Registrable Securities to the Corporation for use in such
Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto, each such Holder agrees,
severally and not jointly, to indemnify and hold harmless any
other Holders of Registrable Securities, the Corporation, its
Affiliates, officers, directors, employees representatives and
agents and each Person, if any, who controls such other Holders or
the Corporation within the meaning of either such Section, against
any and all loss, liability, claim or damage described in the
indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Corporation by or on behalf
of such Holder of Registrable Securities (which also acknowledges
the indemnity provisions herein) or any person, if any, who
controls any such Holder of Registrable Securities expressly for
use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this
indemnity agreement. The indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) representation of both parties by the same
counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees
and expenses of more than one separate firm (in addition to any
local counsel), for each of the Carlyle Holders and Xxxx Holders,
and all Persons, if any, who control the Holders of Registrable
Securities within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, collectively
(unless representation of all Holders and such parties by the same
counsel would be inappropriate due to actual or potential
differing interests between or among them), and (b) the fees and
expenses of more than one separate firm (in addition to any local
counsel), for the Corporation and each Person, if any, who
controls the Corporation within the meaning of either such
Section, and that all fees and expenses payable under (a) and (b)
above shall be reimbursed as they are incurred. In the case of
any such separate firm for the Holders of Registrable Securities,
and control persons of the Holders of Registrable Securities, such
firm shall be designated by the Requesting Holders and shall be
reasonably acceptable to the Corporation. In the case of any such
separate firm for the Corporation and control persons of the
Corporation, such firm shall be reasonably acceptable to the
Holders of a majority in interest of the Registrable Securities.
So long as it is participating in the defense of the indemnified
party, the indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent
(which consent shall not be unreasonably withheld or delayed), but
if settled with such consent or if there be a final non-appealable
judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified parties (which consent shall not be unreasonably
withheld or delayed), settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this
Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party. No indemnified
party shall, without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld or
delayed), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section
6 (whether or not the indemnified parties are actual or potential
parties thereto).
(d) If the indemnification to which an indemnified
party is entitled under this Section 6 is for any reason
unavailable to or insufficient although applicable in accordance
with its terms to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and of the
indemnified party on the other hand in connection with the
statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Corporation on the one hand
and the Holders of the Registrable Securities on the other hand
shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Corporation or by the Holder of the
Registrable Securities and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this Section 6(d). The
aggregate amount of losses, liabilities, claims, damages, and
expenses incurred by an indemnified party and referred to above in
this Section 6(d) shall be deemed to include any out-of-pocket
legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission
or alleged omission.
Notwithstanding the provisions of this Section 6, no
Holder shall be required to indemnify or contribute any amount in
excess of the amount by which the amount actually received by such
Holder for the Registrable Securities sold by such Holder exceeds
the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
The remedies provided in this Section 6 are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in
equity.
For purposes of this Section 6(d), each Person, if any,
who controls any Holder of Registrable Securities within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such
Holder, and each Person, if any, who controls the Corporation
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution
as the Corporation. No party shall be liable for contribution
with respect to any action, suit, proceeding or claim settled,
compromised, or with respect to which the party requesting
contribution consented to the entry of a judgment, without such
party's written consent, which consent shall not be unreasonably
withheld or delayed.
(e) The Corporation may require as a condition to
including the Registrable Securities in the Registration
Statement, and to entering into any underwriting agreement with
respect thereto, that the Corporation shall have received an
undertaking from the Holder and such underwriter to comply with
the provisions of this Section 6.
(f) The agreements contained in this Section 6 shall
survive the transfer or sale of the Registrable Securities and
shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation
made by or on behalf of any indemnified party.
Section 7. Information Requirements.
(a) The Corporation agrees that, if at any time the
Corporation is not subject to the reporting requirements of the
Exchange Act, it will cooperate with any Holder of Registrable
Securities and use reasonable efforts to take such further
reasonable action as any Holder of Registrable Securities may
request in writing to enable such Holder to sell Registrable
Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 and Rule
144A under the Securities Act (or any similar rule or regulation
hereafter adopted by the SEC) and customarily taken in connection
with sales pursuant to such exemptions, including, without
imitation, making available adequate current public information
within the meaning of paragraph (c)(2) of Rule 144 and delivering
the information required by paragraph (d) of Rule 144A.
Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Corporation to register any of its
securities under any section of the Exchange Act.
(b) The Corporation shall file reports required to be
filed by it under the Exchange Act and the rules of the NYSE or
any other securities exchanges or markets on which the Common
Stock is listed or quoted.
Section 8. Underwritten Registration. If any of the
Registrable Securities covered by a Registration Statement filed
in connection with Sections 2(a) or 2(b) are to be sold in an
underwritten offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be
investment bankers of recognized national standing selected by the
Requesting Holders, subject to the consent of the Corporation,
which will not be unreasonably withheld or delayed. No person may
participate in any underwritten registration hereunder unless such
person (a) agrees to sell such person's Registrable Securities on
the basis reasonably provided in any underwriting arrangements
approved by the Requesting Holders; and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up agreements and other documents reasonably
required under the terms of such underwriting arrangements.
Notwithstanding any other provision of this Agreement, if the
underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten,
the number of shares that may be included in the underwriting
shall be allocated as set forth in Sections 2(f) and 3(b) above.
Section 9. Miscellaneous.
(a) No Inconsistent Agreements. The Corporation has
not entered into or shall not enter into any agreement that is
inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the
holders of the Corporation's other issued and outstanding
securities under any such agreements.
(b) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and is
intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the
registration rights granted by the Corporation with respect to the
Registrable Securities. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred
to herein, with respect to the registration rights granted by the
Corporation with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and undertakings among
the Parties with respect to such registration rights, including
the Registration Rights Agreement dated February 21, 1990 and the
Registration Rights Agreement dated June 9, 1999.
(c) No Adverse Action Affecting the Registrable
Securities. The Corporation will not take any action with respect
to the Registrable Securities which would adversely affect the
ability of any of the Holders to include such Registrable
Securities in a registration undertaken pursuant to this
Agreement.
(d) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof, may not be given, without
the written consent of the Corporation and Holders of (i) a
majority in interest of Registrable Securities held by Xxxx
Holders and (ii) a majority in interest of Registrable Securities
held by Carlyle Holders, provided, however, that, for the purposes
of this Agreement, Registrable Securities that are held, directly
or indirectly, by either the Corporation or an Affiliate of the
Corporation are not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the
rights of Holders whose Registrable Securities are being sold
pursuant to the Registration Statement with respect to the
offering of Registrable Securities pursuant to such Registration
Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in
interest of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement, provided, however, that
the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable
Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be
bound by any such amendment, modification, supplement, waiver or
consent effected pursuant to this Section 9(d), whether or not any
notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(e) Notices. All notices and other communications
provided for herein or permitted hereunder shall be made in
writing by hand-delivery, courier guaranteeing overnight delivery,
certified first-class mail, return receipt requested, or telecopy
and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one Business
Day after being deposited with such courier, if made by overnight
courier or (iv) on the date indicated on the notice of receipt, if
made by first-class mail, to the parties as follows:
(i) If to the Corporation to:
URS Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
With a copy to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
(ii) If to Xxxx or a Xxxx Holder to:
Xxxx Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxx
(iii) If to Carlyle or a Xxxxxxx Xxxxxx to:
The Carlyle Group
0000 Xxxxxxxxxxxx Xxx., X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxx & Xxxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
(f) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors assign and transferees. Any Holder
may assign its rights hereunder in whole or in part to an
Affiliate or to a Distributee or to other successors, assigns and
transferees of such Holder; provided that such Affiliate,
Distributee or successor, assignee or transferee expressly agrees
to be bound by this Agreement by written supplement. This
Agreement shall survive any transfer of Registrable Securities to
and shall inure to the benefit of each Holder and any Affiliate,
Distributee or such other successors, assigns and transferees of
such Holder.
(g) Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Delaware, as applied to contracts made and performed within the
State of Delaware without regard to principles of conflicts of
law.
(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the parties hereto
shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction, it
being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted
by law.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof. All references made in this Agreement
to "Section" and "paragraph" refer to such Section or paragraph of
this Agreement, unless expressly stated otherwise.
(j) Specific Performance. The Corporation agrees that,
to the extent permitted by law, (i) the obligations imposed on
them in this Agreement are special, unique and of an extraordinary
character, and that in the event of a breach by the Corporation
would not be an adequate remedy; and (ii) the Holders shall be
entitled to specific performance and injunctive and other
equitable relief in addition to any other remedy to which they may
be entitled at law or in equity.
In Witness Whereof, the parties hereto have caused this
Agreement to be duly executed, in two or more counterparts, each
of which shall be deemed to be an original and all of which
collectively shall be deemed to be one and the same instrument, as
of the date first written above.
Corporation: URS Corporation
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Financial Officer and
Secretary
Xxxx: XXXX STRATEGIC PARTNERS, L.P.
By: XXXX STRATEGIC GP, L.L.C.,
its general partner
By: /s/ N. Xxxxx Xxxx
N. Xxxxx Xxxx, Managing Member
XXXX CAPITAL PARTNERS, L.P.
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By: /s/ N. Xxxxx Xxxx
N. Xxxxx Xxxx, Managing Partner
Carlyle: Carlyle-EG&G, L.L.C.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Chairman
EG&G Technical Services Holdings, L.L.C.
By:/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
