AMENDMENT NO. 4 TO
STOCKHOLDERS AGREEMENT
This Amendment No. 4 to Stockholders Agreement (this "Amendment") is
made and entered into as of December 16, 1996 by and between Aftermarket
Technology Holdings Corp., a Delaware corporation (the "Company"), Aurora
Equity Partners L.P., a Delaware limited partnership ("AEP"), Aurora Overseas
Equity Partners I, L.P., a Cayman Islands exempted limited partnership
("AOEP"), and each of the stockholders of the Company who are signatories
hereto (the "Stockholders").
WHEREAS, Section 10.2 of that certain Stockholders Agreement dated as of
August 2, 1994 among the Company and certain of its stockholders,
optionholders and warrantholders, as amended (the "Stockholders Agreement"),
permits the amendment thereof by a written agreement signed by (a) the
Company, (b) AEP and AOEP and (c) the holders of a majority in voting
interest of the outstanding shares of Common Stock and Preferred Stock of the
Company;
WHEREAS, the Stockholders hold a majority in voting interest of the
outstanding shares of Common Stock and Preferred Stock of the Company; and
WHEREAS, the parties hereto desire to amend the Stockholders Agreement
to make certain changes to the registration rights provided in Amendment No.
3 to the Stockholders Agreement to stockholders holding more than 10% of the
outstanding common stock under certain circumstances.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. AMENDMENT. Exhibit D to the Stockholders Agreement is hereby
deleted in its entirety and the attached Annex A is hereby substituted in its
place.
2. GOVERNING LAW. This Amendment shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware without
reference to choice or conflicts of law principles thereof.
3. EFFECT OF AMENDMENT. Except as amended by this Amendment, the
Stockholders Agreement shall remain unchanged and shall remain in full force
and effect.
IN WITNESS WHEREOF, the Company, AEP, AOEP and each of the Stockholders
have duly executed this Amendment as of the date first above written.
AFTERMARKET TECHNOLOGY HOLDINGS CORP.
By:
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Name:
---------------------------------
Title:
--------------------------------
THE CLASS A STOCKHOLDERS:
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XXXXXXX X. XXXXX
XXXXX X. XXXX REVOCABLE TRUST
--------------------------------------
Xxxxx X. Xxxx, Grantor/Trustee
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XXXXXXX X. XXXXXX
2
THE CLASS B STOCKHOLDERS:
ALLENWOOD VENTURES, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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XXXX X. XXXXXXXX
XXXXXX XXXXXXXX VARIABLE TRUST
By:
----------------------------------
Xxxxxx Xxxxxxxx, Trustee
THE XXXXXX X. XXXXXX FOUNDATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
AURORA CAPITAL PARTNERS L.P.
By: Aurora Advisors, Inc.,
its general partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
3
AURORA OVERSEAS CAPITAL PARTNERS, L.P.
By: Aurora Overseas Advisors Ltd.,
its general partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
BANCBOSTON INVESTMENTS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
BANKAMERICA CAPITAL CORPORATION
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
4
CASTLEROCK INVESTMENTS LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CHEMICAL EQUITY ASSOCIATES
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CHEMICAL INVESTMENTS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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XXXXXXX X. XXXXXXX
--------------------------------------
XXXXXX X. XXXXXXXX III
THE TRUSTEES OF DARTMOUTH COLLEGE
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
5
XXXX XXXXXX AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO XXXXXXX X. XXXXXXX
By:
-----------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
By:
-----------------------------------
Xxxxxxx X. Xxxxxx, Trustee
XXXX XXXXXX AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO XXXX X. XXXXX
By:
-----------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
By:
-----------------------------------
Xxxxxxx X. Xxxxxx, Trustee
XXXX XXXXXX AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO XXXX X. XXXXXX
By:
-----------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
By:
-----------------------------------
Xxxxxxx X. Xxxxxx, Trustee
6
XXXX XXXXXX AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO XXXXXX X. XXXXXX
By:
-----------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
By:
-----------------------------------
Xxxxxxx X. Xxxxxx, Trustee
XXXX XXXXXX AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO X. XXXXXXXX YORT
By:
-----------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
By:
-----------------------------------
Xxxxxxx X. Xxxxxx, Trustee
DELTA MASTER TRUST
By:
-----------------------------------
Trustee
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XXXXXXX X. XXXXXXXXXX
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XXXXXXXXX X. XXXXX, III
7
GENERAL ELECTRIC PENSION TRUST
By:
-----------------------------------
Name:
---------------------------------
Title: Trustee
HARBOURTON REASSURANCE, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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XXXX X. XXXXX
XXXXXX FINANCIAL, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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AMBASSADOR XXXXX X. XXXXXXX
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XXXXX X. XXXXX
8
L-A&A GIFT TRUST FBO
XXXXXX XXXXXX XXXXXXXX
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
L-A&A GIFT TRUST FBO
XXXXXXXX XXXXXX XXXXXXXX
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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XXXX X. XXXXXX
LODWRICK AND XXXXXX XXXX AS
TRUSTEES OF THE XXXX FAMILY
TRUST DATED SEPTEMBER 16, 1991
By:
-----------------------------------
Trustee
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XXXX X. XXXXX
9
NHL HOLDINGS LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
OGAC LIMITED
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
ORYX EQUITY PARTNERS FUND I LTD.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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XXXXXX X. XXXXXX
X.X. XXXXXX AND X.X. XXXXXX, JTWROS
By:
-----------------------------------
Xxxxxx X. Xxxxxx
By:
-----------------------------------
Xxxxxxx X. Xxxxxx
00
XXXXXXXXXX X TRUST
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SPRINGBROOK, G.P.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
--------------------------------------
XXXXXXX X. XXXXXXX
SUMITOMO BANK OF CA TTEE FOR XXXXXX,
XXXX & XXXXXXXX RETIREMENT PLAN FBO
H. XXXXXXX XXXXXX
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SUMITOMO BANK OF CA TTEE FOR
XXXXXX, XXXX & XXXXXXXX RETIREMENT
PLAN FBO XXXXX X. XXXXX
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
00
XXXXXXXXXX XX XXXXXXXX XXXXXXXXXX
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
W. S. INVESTMENTS L.P.
By:
-----------------------------------
Name:
---------------------------------
General Partner
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XXXXXX X. XXXXXXXXX
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X. XXXXXXXX YORT
12
THE CLASS C STOCKHOLDERS:
AURORA EQUITY PARTNERS L.P.
By: Aurora Capital Partners L.P.,
its general partner
By: Aurora Advisors, Inc.,
its general partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
AURORA OVERSEAS EQUITY PARTNERS I, L.P.
By: Aurora Overseas Capital
Partners, L.P.,
its general partner
By: Aurora Overseas Advisors Ltd.,
its general partner
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
13
ANNEX A
EXHIBIT D
REGISTRATION RIGHTS
1. "PIGGY-BACK" REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. Except in the case of
a Qualified IPO that is consummated on or before March 31, 1997, if the
Company at any time proposes to effect a Qualified IPO or, following a
Qualified IPO, proposes to register any of its equity securities under the
Act (other than by a registration on Form S-4 or S-8 or any successor or
similar forms), whether or not for sale for its own account, in a manner
which would permit registration of Registrable Securities for sale to the
public under the Act, then the Company will each such time give prompt
written notice (which shall be at least 30 days prior to filing) to all
Eligible Holders of Registrable Securities of its intention to do so and of
such Eligible Holders' rights under this Paragraph 1. Upon the written
request of any such Eligible Holder made within 20 days after the receipt of
any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such Eligible Holder and the intended method of
disposition thereof), the Company will use its best efforts to effect the
registration under the Act of all Registrable Securities which the Company
has been so requested to register by the holders thereof, to the extent
requisite to permit the disposition (in accordance with the intended methods
thereof as aforesaid) of the Registrable Securities so to be registered, by
inclusion of such Registrable Securities in the registration statement which
covers the securities which the Company proposes to register or in a separate
registration statement concurrently filed and on terms substantially the same
as those being offered to the Company; PROVIDED that if, at any time after
giving written notice of its intention to register any securities and prior
to the effective date of the registration statement filed in connection with
such registration, the Company shall determine for any reason not to register
or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to each Eligible Holder
of Registrable Securities and, thereupon:
(i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay
the Registration Expenses in connection therewith), and
(ii) in the case of a delay in registering, shall be permitted to
delay registering any Registrable Securities for the same period as
the delay in registering such other securities.
(b) PRIORITY IN "PIGGY-BACK" REGISTRATIONS. If a registration
that is subject to this Paragraph 1 (except for a registration that is
subject to Paragraph 2, which shall be governed by Paragraph 2(d) rather than
this Paragraph 1(b)) involves
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-1
an underwritten offering and the managing underwriter advises the Company in
writing that the number of securities requested to be included in such
registration pursuant to this Paragraph 1, together with all other securities
to be included in such registration, exceeds the Maximum Number (as defined
below), then such securities shall be included in the offering up to the
Maximum Number in the following priority:
(i) first, (x) in the case of a Company Registration (as
defined below), the securities proposed to be sold by the Company or
(y) in the case of an Investor Registration (as defined below), the
securities proposed to be sold by the Demand Investors (as defined
below) on such basis as shall be provided in the agreement(s) pursuant
to which the Demand Investors have the right to demand or include
securities in an Investor Registration;
(ii) second, in the case of an Investor Registration, the
securities, if any, proposed to be sold by the Company for its own
account;
(iii) third, any Registrable Securities requested to be included
in such registration pursuant to this Paragraph 1 PRO RATA among the
holders thereof requesting such registration on the basis of the
number of shares of such securities requested to be included by such
holders; and
(iv) fourth, any other securities of the Company proposed to be
included in such registration statement in accordance with the
priorities, if any, then existing among the holders of such
securities.
If at the time that the registration statement ceases to be effective in
accordance with Paragraph 3(b) there remain unsold securities under such
registration, such securities will be withdrawn and shall be allocated as
follows:
(1) first, among the holders of the securities referred to in
clause (iv) above in accordance with the priorities, if any, then
existing among the holders of such securities;
(2) second, on a pro rata basis among the holders of Registrable
Securities included in such registration pursuant to this Paragraph 1
on the basis of the respective numbers of Registrable Securities of
each such holder included in such registration
(3) third, in the case of an Investor Registration, to the
Company in the event that any securities were offered by the Company;
and
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-2
(4) fourth, (x) in the case of a Company Registration, to the
Company or (y) in the case of an Investor Registration, among the
Demand Investors on such basis as shall be provided in the agreements
pursuant to which the Demand Investors have the right to demand or
include securities in an Investor Registration.
As used herein, the following terms have the following meanings:
"Company Registration" means a registration the primary purpose
of which is to sell securities for the account of the Company.
"Demand Investor" means any Person who is exercising (x) a
"demand" right to require the Company register securities held by such
Person or (y) a "piggyback" right to include securities in a
registration on a pro rata basis with the Person whose demand right
results in such registration.
"Investor Registration" means a registration the primary purpose
of which is to sell securities for the account of one or more Demand
Investors.
"Maximum Number" means, in the case of an underwritten offering,
the maximum number of securities that the managing underwriter
considers, in good faith, to be appropriate based on market conditions
and other relevant factors (including, without limitation, pricing).
2. REGISTRATION RIGHTS OF CERTAIN ELIGIBLE HOLDERS.
(a) RIGHT TO REQUIRE REGISTRATION. Subject to the provisions of
this Paragraph 2, if, at any time after the first anniversary of the
consummation of a Qualified IPO, any Eligible Holder (other than the Aurora
Entities) is the record owner of 10% or more of the outstanding Common Stock
immediately after a distribution of shares by either or both of the Aurora
Entities to their limited partners (such Eligible Holder, so long as it
continues to own 10% or more of the outstanding Common Stock, is hereinafter
referred to as a "10% Holder"), such 10% Holder shall have the right to
require the Company to file a registration statement under the Securities Act
for a public offering of all or any portion of the Registrable Securities
held by such Holder when such right is exercised (the "Paragraph 2 Securities"),
PROVIDED that any demand for registration under this Paragraph 2(a) (a "Demand
Registration Demand") shall not be otherwise deemed to be effective unless such
Demand Registration Demand is with respect to Paragraph 2 Securities
constituting at least five percent of the outstanding shares of
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-3
the class of Registrable Securities. The demand registration rights granted
to the 10% Holders in this Paragraph 2(a) are subject to the following
limitations:
(i) each 10% Holder may make a Demand Registration Demand
under this Paragraph 2(a) only one time, PROVIDED, HOWEVER, that if,
after completion of the resulting registered offering, such Person
continues to be a 10% Holder or becomes a 10% Holder as the result of
a subsequent distribution of shares by either or both of the Aurora
Entities to their limited partners, such 10% Holder shall have the
right to make one additional Demand Registration Demand;
(ii) the Company shall not be obligated to cause any
registration statement filed under this Paragraph 2(a) to be declared
effective less than six months after the effective date of the most
recent Company Registration;
(iii) the managing underwriter of any such offering shall be a
nationally recognized investment banking firm selected by the Company
and approved by the 10% Holder making the Demand Registration Demand
(which approval shall not be unreasonably withheld);
(iv) notwithstanding the giving of a Demand Registration Demand
by a 10% Holder, the Company may elect to convert the required
registration into a Company Registration by providing notice to the
Eligible Holders in accordance with Paragraph 1, and in such event the
provisions of Paragraph 1 shall apply to such registration rather than
the provisions of this Paragraph 2 and such registration shall not
count as the exercise of such 10% Holder's registration right under
this Paragraph 2(a);
(v) during any two-year period, the Company may make a one-time
election to postpone the filing or the effectiveness of a registration
statement in response to a Demand Registration Demand for up to six
months if the Board determines, in its good faith judgment, that (x)
such registration would reasonably be expected to have an adverse
effect on, interfere with or delay 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 or similar transaction, (y) the filing of
a registration statement or a sale of Registrable Securities pursuant
thereto would require disclosure of material information that the
Company has a bona fide business purpose for preserving as
confidential, or (z) the Company is unable to comply with the
registration requirements of the Commission; PROVIDED,
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-4
that, in such event, the 10% Holder making the Demand Registration
Demand will be entitled to withdraw such demand and, if such demand is
withdrawn, such demand will not count as a Demand Registration Demand
hereunder and the Company will pay all Registration Expenses in
connection with such withdrawn demand; and
(vi) any Demand Registration Demand under this Paragraph 2(a)
shall be for a firm commitment underwritten offering, with respect to
which the Company shall be required to maintain an effective
registration statement until the earlier of (x) such time as all the
securities covered by such registration statement shall have been
disposed of or (y) the expiration of 45 days after the effectiveness
of such registration statement.
(b) PIGGY BACK REGISTRATION. If after the date of Amendment No. 4
to this Agreement the Company enters into a registration rights agreement
with any third party (the "Subsequent Investor") pursuant to which the
Subsequent Investor is granted the right to thereafter require the Company on
one or more occasions to file a registration statement under the Act for a
public offering of all or any of the Subsequent Investor's shares of the
capital stock of the Company, such registration rights agreement (the
"Subsequent Agreement") must provide that all 10% Holders shall have the
right to require the Company to include any or all of such Holders' Paragraph
2 Securities in any registration statement filed pursuant to the Subsequent
Agreement. The piggy back registration right granted to the 10% Holders in
this Section 2(b) is subject to the following limitations:
(i) a 10% Holder may not make a demand for inclusion of
Paragraph 2 Securities in a registration statement under a Subsequent
Agreement (a "Piggy Back Registration Demand") (x) before the first
anniversary of the consummation of a Qualified IPO or (y) after such
Holder's exercise of both its rights under Paragraph 2(a);
(ii) the rights of the Company and limitations on the Company's
obligations provided for in the Subsequent Agreement shall apply to
the 10% Holders to the same extent that they apply to the Subsequent
Investor; and
(iii) the method of distribution shall be selected by the
Subsequent Investor.
As used herein, the term "Registration Demand" means either the Demand
Registration Demand or a Piggyback Registration Demand, as the case may be.
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-5
(c) NOTICE OF REGISTRATION DEMAND; PARTICIPATION RIGHTS. Any 10%
Holder desiring to make a Registration Demand shall do so by providing
written notice to the Company (which notice shall state the number of shares
of Paragraph 2 Securities the 10% Holder desires the Company to register),
and the Company promptly shall provide written notice of such Registration
Demand to (i) the Subsequent Investor (in the case of a Piggy Back
Registration Demand) and any other 10% Holders, (ii) all of the other
Eligible Holders and (iii) any other Person who then has "piggy back"
registration rights (an "Additional Securityholder"), and all of the other
10% Holders, Eligible Holders and Additional Securityholders then will have
the opportunity to include in the offering shares of Registrable Securities
then owned by such 10% Holders, Eligible Holders and Additional
Securityholders, but in each case only to the extent permitted by Paragraph
2(d). In addition, subject to Paragraph 2(d), the Company may elect to
include in any registration statement and offering pursuant to this Paragraph
2 newly issued shares of Registrable Securities. Solely for purposes of
Paragraphs 2 through 9, any securities registered pursuant to this Paragraph
2 shall be deemed to be Registrable Securities.
(d) PRIORITY. Notwithstanding the foregoing, if the managing
underwriter of a registered offering being made in response to the
Registration Demand advises the Company in writing that the number of shares
of Registrable Securities desired to be offered by the 10% Holders, the
Subsequent Investor (if any), the Company, the Eligible Holders and the
Additional Securityholders exceeds the Maximum Number, then Registrable
Securities shall be included in the offering, up to the Maximum Number, in
the following priority:
(i) First, (A) in the case of a Demand Registration Demand,
the Registrable Securities desired to be offered by the 10% Holders
on a pro rata basis based on the number of Paragraph 2 Securities
then owned by each such 10% Holder, or (B) in the case of a Piggy
Back Registration Demand, the Registrable Securities desired to be
offered by the 10% Holders and the Registrable Securities desired
to be offered by the Subsequent Investor, PROVIDED that if such
Registrable Securities exceed the Maximum Number, the 10% Holders and
the Subsequent Investor shall be entitled to include Registrable
Securities on a pro rata basis based on the number of Paragraph 2
Securities then owned by each such 10% Holder and the number of shares
of Common Stock then owned by the Subsequent Investor that are subject
to the Subsequent Agreement;
(ii) Second, the Registrable Securities desired to be offered
by the Company;
(iii) Third, the Registrable Securities desired to be offered
by Eligible Holders pursuant to Paragraph 1; and
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-6
(iv) Fourth, the Registrable Securities desired to be offered
by Additional Securityholders in such relative amounts and priorities
as shall be provided in the agreements that define the relative rights
of the Additional Securityholders.
Each of the 10% Holders, the Subsequent Investor, the Eligible Holders, the
Additional Securityholders and the Company (in the event that any securities
are to be offered by the Company) may withdraw from the registration by
giving written notice to the Company prior to the filing date of such
registration statement. In the event of a withdrawal by a 10% Holder of a
Demand Registration Demand, such withdrawn demand shall not be deemed to be
one of the Demand Registration Demands to which such 10% Holder is entitled
PROVIDED that such 10% Holder pays or promptly reimburses the Company for all
Registration Expenses incurred by the Company in connection with such
withdrawn demand. In the event of a withdrawal of a Demand Registration
Demand where any other 10% Holder does not withdraw from the registration,
such nonwithdrawing 10% Holder shall be deemed to have made a Demand
Registration Demand. In the event that the Subsequent Investor withdraws
from the registration but any 10% Holder does not withdraw its Piggyback
Registration Demand, such Piggyback Registration Demand shall thereafter
constitute a Demand Registration Demand by such 10% Holder. If at the time
that the registration statement ceases to be effective in accordance with
Paragraph 2(a)(vi) or, in the case of a registration subject to Paragraph
2(b), in accordance with the Subsequent Agreement there remain unsold
Registrable Securities, such Registrable Securities will be withdrawn and
shall be allocated as follows:
(1) first, among the Additional Securityholders on the basis
of the relative amounts and priorities as shall be provided in the
agreements that define the relative rights of the Additional
Securityholders;
(2) second, on a pro rata basis among the Eligible Holders
(other than 10% Holders) on the basis of the respective numbers of
Registrable Securities of each of them included in such registration;
(3) third, to the Company (in the event that any securities
were offered by the Company); and
(4) fourth, (x) in the case of a Demand Registration Demand, to
the 10% Holders on the basis of the respective numbers of Registrable
Securities of each of them included in such registration or (y) in
the case of a Piggy Back Registration Demand, to the 10% Holders and
the Subsequent Investor on the basis of the respective numbers of
Registrable Securities of each of them included in such registration.
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-7
3. REGISTRATION PROCEDURES. If and whenever the Company is required to
use its best efforts to effect the registration of any Registrable Securities
under the Act as provided in Paragraph 1 or 2, the Company will as expeditiously
as possible (and, in any event, within 90 days), subject to the terms and
conditions of Paragraph 1 or 2:
(a) prepare and file with the Commission the requisite registration
statement to effect such registration and use its best efforts to cause
such registration statement to become effective; PROVIDED, HOWEVER, that
the Company may discontinue any registration of its securities which are
not Registrable Securities at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the disposition of all securities covered by such registration
statement until the earlier of such time as all of such securities have
been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such registration statement or
the expiration of 90 days after such registration statement becomes
effective or, in the case of a registration pursuant to Paragraph 2(a), the
period provided in Paragraph 2(a)(vi); PROVIDED that if less than all the
Registrable Securities are withdrawn from registration after the expiration
of such period, the shares so withdrawn shall be allocated PRO RATA among
the holders thereof on the basis of the to respective numbers of
Registrable Securities held by them included in such registration;
(c) furnish to each seller of Registrable Securities covered by such
registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and
any summary prospectus) and any other prospectus filed under Rule 424 under
the Act, in conformity with the requirements of the Act, and such other
documents, as such seller may reasonably request;
(d) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement
under such securities or blue sky laws of such jurisdictions as each seller
thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains
in effect, and take any other action which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the securities owned by such seller, except that the
Company shall not for any such purpose be required to:
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-8
(i) qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of
this subdivision (d) be obligated to be so qualified,
(ii) subject itself to taxation in any such jurisdiction, or
(iii) consent to general service of process in any such
jurisdiction;
(e) use its best efforts to cause all 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 seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(f) furnish to each seller of Registrable Securities a signed
counterpart, addressed to such seller (and the underwriters, if any), of:
(i) an opinion of counsel for the Company, dated the effective
date of such registration statement (or, if such registration includes
an underwritten public offering, an opinion of counsel for the Company
dated the date of the closing under the underwriting agreement),
reasonably satisfactory in form and substance to such seller, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, a "comfort" letter dated the date of the
closing under the underwriting agreement), signed by the independent
public accountants who have certified the Company's financial
statements included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters as such seller or such
holder (or the underwriters, if any) may reasonably request;
(g) immediately notify each holder of Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Act, of the happening of any
event or the existence of any condition as a result of which the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-9
which they were made, or if in the opinion of counsel for the Company it
is necessary to supplement or amend such prospectus to comply with law and,
at the request of any such holder promptly prepare and furnish to such
holder a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include 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 not
misleading in light of the circumstances under which they were made or such
prospectus, as supplemented or amended, shall comply with law;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and the rules and regulations of the
Commission thereunder, and not file any amendment or supplement to such
registration statement or prospectus to which any such seller of
Registrable Securities covered by such registration statement shall have
reasonably objected on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of the Act or of
the rules or regulations thereunder, having been furnished with a copy
thereof at least five business days prior to the filing thereof;
(i) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement;
(j) use its best efforts to list all Registrable Securities covered
by such registration statement on any securities exchange on which any of
the Registrable Securities are then listed; and
(k) pay all Registration Expenses relating to any such registration.
The Company may require each seller of Registrable Securities as to which
any registration is effected to furnish the Company with such information and
undertakings as it may reasonably request regarding such seller and the
distribution of such securities as the Company may from time to time reasonably
request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities as follows:
(A) that upon receipt of any notice from the Company of the
happening of any event of the kind described in
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-10
subdivision (g) of this Paragraph 3, such holder will forthwith
discontinue such holder's disposition of Registrable Securities
pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies
of the supplemented or amended prospectus contemplated by
subdivision (g) of this Paragraph 3 and, if so directed by the
Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such
holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such
notice, and
(B) that it will immediately notify the Company, at any time
when a prospectus relating to the registration of such
Registrable Securities is required to be delivered under the Act,
of the happening of any event as a result of which information
previously furnished by such holder to the Company in writing for
inclusion in such prospectus contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made.
In the event the Company or any such holder shall give any such notice,
the period referred to in subdivision (b) of this Paragraph 3 shall be
extended by a number of days equal to the number of days during the period
from and including the giving of notice pursuant to subdivision (g) of this
Paragraph 3 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 subdivision
(g) of this Paragraph 3.
4. UNDERWRITTEN OFFERINGS.
(a) UNDERWRITING AGREEMENT. If the Company at any time proposes to
register any of its securities under the Act as contemplated by Paragraph 1
and such securities are to be distributed by or through one or more
underwriters or if the Company at any time is required to register any of
its securities under the Act as contemplated by Paragraph 2, the Company
will, subject to the provisions of subdivision (b) of Paragraph 1 or
subdivision (d) of Paragraph 2, use its best efforts to arrange for such
underwriters to include the Registrable Securities to be offered and sold
by each holder among the securities to be distributed by such underwriters,
and each holder of Registrable Securities agrees, by acquisition of such
Registrable Securities, that all Registrable Securities of such holder to
be included in such registration shall be distributed and sold through such
underwriters. The holders of Registrable Securities to be distributed by
such underwriters shall be parties to the
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-11
underwriting agreement between the Company and such underwriters and may,
at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and
for the benefit of such underwriters shall also be made to and for the
benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters shall also
be made to and for the benefit of such holders of Registrable Securities.
No holder of Registrable Securities shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such holder and such holder's intended method of distribution and any other
representation required by law.
(b) SELECTION OF UNDERWRITERS. The selection of the underwriter or
underwriters for the public offering to be made pursuant to a registration
statement filed under Paragraph 1 shall be made by the Company, in its sole
discretion, from amongst underwriting firms of national reputation.
Notwithstanding anything else in this Exhibit D to the contrary, if General
Electric Pension Trust ("GEPT") is eligible to participate in an
underwriting pursuant to the terms hereof and the General Electric Company
is directly or indirectly the beneficial owner of five percent (5%) or more
of the outstanding equity interests of an underwriter or underwriters
acting in such underwriting, GEPT shall have the absolute right to
disapprove such underwriter or underwriters so owned by General Electric
Company.
(c) HOLDBACK AGREEMENTS.
(i) Each holder of Registrable Securities agrees by acquisition
of such Registrable Securities, if so required by the managing
underwriter, not to effect any public sale or distribution of such
securities or sales of such securities pursuant to Rule 144 under the
Act or otherwise, during the seven days prior to and the 90 days after
any firm commitment underwritten registration pursuant to Paragraph 1
or 2 or any Qualified IPO that is consummated on or before March 31,
1997 has become effective or, if the managing underwriter advises the
Company in writing that, in its opinion, no such public sale or
distribution should be effected for a specific period longer than 90
days after such underwritten registration in order to complete the
sale and distribution of securities included in such registration and
the Company gives notice to such holder of Registrable Securities of
such advice, during a reasonable longer period of up to 270 days after
such underwritten registration, except as part of such underwritten
registration, whether or not such holder participates in such
registration.
(ii) The Company agrees:
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-12
(A) not to effect any public sale or distribution of its equity
securities or securities convertible into or exchangeable or
exercisable for any of such securities during the seven days
prior to and the 90 days after any firm commitment underwritten
registration pursuant to Paragraph 1 or 2 has become effective,
except as part of such underwritten registration and except
pursuant to registrations on Form S-4 or S-8 or any successor or
similar forms thereto, and
(B) to use its best efforts to cause each holder of its equity
securities or any securities convertible into or exchangeable or
exercisable for any of such securities, in each case purchased
from the Company at any time after the date hereof (other than in
a public offering) to agree not to effect any such public sale or
distribution of such securities, during such period or, in either
case, if the managing underwriter advises the Company in writing
that in its opinion, no such public sale or distribution should
be effected for a specified period longer than 90 days after such
underwritten registration in order to complete the sale and
distribution of securities included in such registration, during
a reasonably longer period after such underwritten registration,
except as part of such underwritten registration.
5. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Act, the
Company will give the holders of Registrable Securities registered under such
registration statement, their underwriters, if any, and their respective
counsel and accountants, the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with
the Commission, and each amendment thereof or supplement thereto, and will
give each of them such access to its books and records and such opportunities
to discuss the business, finances and accounts of the Company and its
subsidiaries with its officers, directors and the independent public
accountants who have certified its financial statements as shall be
necessary, in the opinion of such holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the Act.
6. CERTAIN RIGHTS OF HOLDERS. The Company will not file any registration
statement under the Act which refers to any holder of Registrable Securities by
name or otherwise as the holder of any securities of the Company, unless it
shall first have given such holder the right to require:
(a) the insertion therein of language, in form and substance
satisfactory to such holder, to the effect that, in the opinion of such
holder, the holding by such holder of such securities does not make such
holder a "controlling person" of the Company within the meaning of the Act
and is not to be construed as a
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-13
recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such
holder will assist in meeting any future financial requirements of the
Company, or
(b) in the event that such reference to such holder by name or
otherwise is not required by the Act or any rules and regulations
promulgated thereunder, the deletion of the reference to such holder.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
of any securities of the Company under the Act, the Company will, and
hereby does, indemnify and hold harmless the seller of any Registrable
Securities covered by any registration statement filed pursuant to
Paragraph 1 or 2, its directors, officers, partners, employees, agents and
investment advisors, each other Person who participates as an underwriter
in the offering or sale of such securities and each other Person, if any,
who controls such seller or any such underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, from and
against any losses, claims, damages or liabilities, joint or several (or
actions or proceedings, whether commenced or threatened, in respect
thereof) (collectively, "Claims"), to which such seller or any such
director or officer or employee or agent or investment advisor or
underwriter or controlling person may become subject under either Section
15 of the Act or Section 20 of the Exchange Act or otherwise, insofar as
such Claims arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto (if used during the period
the Company is required to keep the registration statement current)
(collectively, "Registration Documents"), or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which made, or any violation by the Company of the Act or
any state securities law, or any rule or regulation promulgated under the
Act or any state securities law, or any other law applicable to the Company
relating to any such registration or qualification, and the Company will
reimburse such seller and each such director, officer, employee, agent,
investment advisor, underwriter and controlling person for any legal or any
other expenses reasonably incurred by them in connection with investigating
or defending any such Claim; PROVIDED that the Company shall not be liable
in any such case to the extent that any such Claim or expense arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any such Registration Document in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller stating that it
is for use in the preparation thereof; PROVIDED FURTHER that the Company
shall not be liable to any Person who
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-14
participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act in any such case to the extent that any such Claim, or
expense arises out of such Person's failure to send or give a copy of the
final prospectus to the Person claiming an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director,
officer, employee, agent, investment advisor, partner, underwriter or
controlling person and shall survive the transfer of such securities by
such seller.
(b) INDEMNIFICATION BY THE SELLERS. The Company may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Paragraph 1 or 2, that the Company shall have
received an undertaking satisfactory to it from the prospective seller of
such securities, to indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this Paragraph 7) the
Company, each director of the Company, each officer of the Company and each
other person, if any, who controls the Company within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, with respect to
any statement or alleged statement or omission or alleged omission from
such Registration Document, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company through an instrument
duly executed by such seller specifically stating that it is for use in the
preparation of such Registration Document. Notwithstanding the foregoing,
in no event shall any selling stockholder or any director, officer,
employee, agent, investment advisor or controlling person thereof be liable
to indemnify the Company pursuant to this subdivision (b) of this Paragraph
7 hereof in an amount in excess of the amount of the net proceeds of the
Registrable Securities sold by him, her or it in any such offering. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company of any such director,
officer or controlling person and shall survive the transfer of such
securities by such seller.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
Claim referred to in the preceding subdivisions of this Paragraph 7, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the
commencement of such action; PROVIDED that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding subdivisions of this Paragraph
7, except to the extent that the indemnifying party is actually prejudiced
by such failure to give notice. In case any
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-15
such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim,
the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall consent to entry of
any judgment or enter into any settlement of any pending or threatened
proceeding in respect of which an indemnified party is or could have been a
party and indemnity could have been sought under subdivision (a) of this
Paragraph 7 without the consent of the indemnified party which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding subdivisions of this Paragraph 7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification
of securities under any Federal or state law or regulation of any
governmental authority, other than the Act. If the indemnification
provided for in subdivision (a), (b) or (c) of this Paragraph 7 is
unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand from the
offering of the securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnified party or
parties on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations; PROVIDED, HOWEVER, that in no
event shall any contribution by the selling stockholder or any director,
officer, employee, agent, investment advisor or controlling person thereof
pursuant to this subdivision (d) of this Paragraph 7 exceed the amount of
the net proceeds of the Registrable Securities sold by him, her or it in
any such offering.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by this
Paragraph 7 shall be made by periodic payments of the amount thereof during
the
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-16
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
8. ADJUSTMENT AFFECTING REGISTRABLE SECURITIES. The Company will not
effect or permit to occur any combination or subdivision of shares which would
adversely affect the ability of the holders of Registrable Securities to effect
the registration of such securities in the manner contemplated by these
registration rights provisions.
9. COVENANTS RELATING TO RULE 144. At all times after the effective date
of the registration statement under the Act of the initial underwritten public
offering of Common Stock, and until such time as all of the Registrable
Securities are deregistered, the Company will file reports in compliance with
the Exchange Act and will, at its expense, forthwith upon the request of any
holder of Restricted Securities, deliver to such holder a certificate, signed by
the Company's principal financial officer, stating:
(a) the Company's name, address and telephone number (including area
code),
(b) the Company's Internal Revenue Service identification number,
(c) the Company's Commission file number,
(d) the number of shares of Common Stock of the Company outstanding
as shown by the most recent report or statement published by the Company,
and
(e) whether the Company has filed the reports required to be filed
under the Exchange Act for a period of at least 90 days prior to the date
of such certificate and in addition has filed the most recent annual report
required to be filed thereunder.
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-17
