Exhibit 10.16
CORNERSTONE BRANDS, INC.
AMENDED AND RESTATED
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REGISTRATION AGREEMENT
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THIS AMENDED AND RESTATED REGISTRATION AGREEMENT is made as of August 25,
1998, by and among Cornerstone Brands, Inc. (the "Company"), a Delaware
corporation, and The Cornerstone Brands Group, Inc., a Delaware corporation
formerly known as The International Cornerstone Group, Inc. ("Oldco"), Madison
Dearborn Capital Partners, L.P., a Delaware limited partnership ("MDCP"), Chase
Venture Capital Associates, L.P., a California Limited Partnership ("CVCA"), and
the Persons listed on Schedule A (hereinafter collectively referred to as the
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"Other Stockholders").
WHEREAS, the Registration Agreement was originally entered into among the
Company, MDCP and certain of the Other Stockholders on September 13, 1995;
WHEREAS, such Registration Agreement was subsequently amended on
November 15, 1995, January 31, 1996, July 28, 1997, August 13, 1997 and June 18,
1998 (as amended, the "Original Agreement");
WHEREAS, on the date hereof, the Company and Oldco consummated a merger
pursuant to an Agreement and Plan of Merger, as a result of which merger the
former stockholders of Oldco received shares of stock of the Company;
WHEREAS, Oldco assigned to the Company, and the Company assumed, Oldco's
obligations under the Original Agreement; and
WHEREAS, the parties to the Original Agreement desire to further amend the
Original Agreement and to reflect such assignment and assumption, and to restate
and integrate into a single instrument the terms of the Original Agreement and
the amendments thereto, including the amendments set forth herein;
NOW THEREFORE, the parties hereby amend and restate the Original Agreement
to read in its entirety as follows:
1. Demand Registrations.
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(a) Request for Registration.
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(i) At any time after June 30, 1999, or such earlier time as the
Company has completed a public offering of its equity securities registered
under the Securities Act of 1933, as amended (the "Securities Act"), the holders
of at least 51% of the Investor Registrable Securities (the "Initiating
Holders") may request registration under the Securities Act of all or any
portion of their Registrable
Securities on Form S-1 or any similar long-form registration ("Long-Form
Registrations"), and the holders of at least 25% of the Investor Registrable
Securities may request registration under the Securities Act of all or any
portion of their Registrable Securities on Form S-2 or S-3 or any similar short-
form registration ("Short-Form Registrations"), if available. All registrations
requested pursuant to this paragraph 1(a)(i) and paragraph 1(a)(ii) below are
referred to herein as "Demand Registrations." Each request for a Demand
Registration shall specify the approximate number of Registrable Securities
requested to be registered and the anticipated per share price range for such
offering. Within ten days after receipt of any such request, the Company shall
give written notice of such requested registration to all other holders of
Registrable Securities and, subject to paragraph 1(d) below, shall include in
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 days after the
receipt of the Company's notice.
(ii) At any time after June 30, 1999, if the Company has not, at such
time of the request, completed a public offering of its equity securities
registered under the Securities Act, the holders of at least 51% of the S&N
Registrable Securities may request a Long-Form Registration under the Securities
Act of all or any portion of the S&N Registrable Securities. The registration
requested pursuant to this paragraph 1(a)(ii) is referred to herein as the "S&N
Demand Registration." A request for the S&N Demand Registration shall specify
the approximate number of S&N Registrable Securities requested to be registered
and the anticipated per share price range for such offering if reasonably
determinable by the holders requesting the S&N Demand Registration. Within ten
days after receipt of any such request, the Company shall give written notice of
such requested registration to all other holders of Registrable Securities and,
subject to paragraph 1(d) below, shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company's
notice.
(b) Long-Form Registrations.
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(i) The holders of Investor Registrable Securities shall be entitled
to request four Long-Form Registrations pursuant to Section 1(a)(i) (of which
one such Long-Form Registration shall be exercisable at the request of the
holders of a majority of the Chemical Registrable Securities; provided that the
Common Stock is then publicly traded on any national securities exchange or
quoted on the NASDAQ System), and the Company shall pay all Registration
Expenses in connection therewith; provided that the gross proceeds payable to
the holders requesting such registration from any such offering shall equal at
least $10,000,000 or the holders requesting such registration shall have
requested registration of at least one-third of their Registrable Securities.
A registration shall not count as one of the four permitted Long-Form
Registrations until it has become effective, and no registration
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shall count as one of the four permitted Long-Form Registrations unless the
holders of Investor Registrable Securities are able to register and sell at
least 80% of the Registrable Securities included in such registration; provided
that in any event the Company shall pay all Registration Expenses in connection
with any registration initiated pursuant to Section 1(a)(i) as a Long-Form
Registration whether or not it has become effective and whether or not such
registration has counted as one of the permitted Long-Form Registrations. All
Long-Form Registrations initiated pursuant to Section 1(a)(i) shall be
underwritten registrations.
(ii) The holders of S&N Registrable Securities shall be entitled to
request one Long-Form Registration pursuant to Section 1(a)(ii) and the Company
shall pay all Registration Expenses in connection therewith. A registration
shall not count as the Long-Form Registration pursuant to Section 1(a)(ii) and
this Section 1(b)(ii) until it has become effective, and unless the holders of
S&N Registrable Securities are able to register and sell at least 80% of the S&N
Registrable Securities included in such registration; provided that in any event
the Company shall pay all Registration Expenses in connection with any
registration initiated pursuant to Section 1(a)(ii) as a Long-Form Registration
whether or not it has become effective and whether or not such registration has
counted as the Long-Form Registration. A Long-Form Registration initiated
pursuant to Section 1(a)(ii) shall be an underwritten registration.
(c) Short-Form Registrations. In addition to the Long-Form
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Registrations provided pursuant to paragraph 1(b), the holders of Investor
Registrable Securities and the holders of S&N Registrable Securities shall be
entitled to request an unlimited number of Short-Form Registrations in which the
Company shall pay all Registration Expenses; provided that the gross proceeds
from any such offering shall equal at least $1,000,000. Demand Registrations
shall be Short-Form Registrations whenever the Company is permitted to use any
applicable short form. After the Company has become subject to the reporting
requirements of the Securities Exchange Act, the Company shall use reasonable
efforts to make Short-Form Registrations available for the sale of Registrable
Securities. Notwithstanding any other provision hereof, the holders of
Registrable Securities shall not be entitled to request more than two Short-Form
Registrations in any twelve-month period.
(d) Priority on Demand Registrations. The Company shall not include
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in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of at least 66-2/3% of the
Investor Registrable Securities. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities and, if permitted hereunder,
other securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
of a majority of the Registrable Securities included in such registration, the
Company shall include in such registration, prior to the inclusion of any
securities which are not Registrable Securities, the number of Registrable
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Securities requested to be included which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such offering, pro
rata among the respective holders thereof on the basis of the amount of
Registrable Securities owned by each such holder; provided, however, that if the
Demand Registration has been requested for the purpose of conducting the initial
public offering of the Company's equity securities registered under the
Securities Act, the Company shall include in such registration (A) first, such
number of Registrable Securities requested to be included in such registration
which are held by the S&N Holders, up to that number of Registrable Securities
which results in gross proceeds payable to the S&N Holders of $30,000,000,
(B) second, the Registrable Securities (other than the Registrable Securities
held by the S&N Holders) requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
shares owned by each such holder, and (C) third, other securities requested to
be included in such registration.
(e) Restrictions on Demand Registrations. The Company shall not be
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obligated to effect any Demand Registration within 180 days after the effective
date of a previous Demand Registration or Piggyback Registration.
(f) Selection of Underwriters.
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(i) The holders of a majority of the Registrable Securities included
in any Demand Registration, other than the S&N Demand Registration, shall have
the right to select the investment banker(s) and managers(s) to administer the
offering, subject to the Company's approval, which shall not be unreasonably
withheld.
(ii) The holders of a majority of the S&N Registrable Securities
included in the S&N Demand Registration shall have the right to select the
investment banker(s) and manager(s) to administer the offering, provided,
however, that such investment banker(s) and manager(s) are among the firms
listed on Schedule B hereto (a "Pre-approved Underwriter"). In the event that
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after contacting each of the firms listed on Schedule B hereto the services of a
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Pre-approved Underwriter are not secured by the S&N Holders initiating the S&N
Demand Registration pursuant to Section 1(a)(ii) within 120 days of the Company
receiving the request from such S&N Holders, then at the end of such 120-day
period such S&N Holders may select any investment banker(s) and manager(s) to
administer the offering, subject to the Company's approval, which shall not be
unreasonably withheld.
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(g) Other Registration Rights. Except as provided in this Agreement,
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the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of at least 66-2/3% of the Registrable Securities;
provided that the Company may grant rights to other Persons to participate in
Piggyback Registrations so long as such rights are subordinate to the rights of
the holders of Registrable Securities with respect to such Piggyback
Registrations as provided in paragraphs 2(c) and 2(d) hereof.
(h) Registration of Merger Shares. At any time after one year from
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the date the Company has completed a public offering of its Common Stock
registered under the Securities Act, the holders of a majority of the Merger
Shares owned of record by the Weeks Stockholders may request that the Company
file with the Securities and Exchange Commission (the "SEC") a single
registration statement on Form S-2 or S-3 (the "Weeks Stockholder Registration
Statement") covering the resale to the public by the Weeks Stockholders of such
number of Merger Shares (if any) as is equal to (i) the aggregate number of
Merger Shares owned of record by the Weeks Stockholders (including Merger Shares
to be included in the Weeks Stockholder Registration Statement) less (ii) 5% of
the total number of outstanding shares of Common Stock; provided that, at the
time of such request, the MDCP, CVCA and their respective permitted transferees,
if any, beneficially own in the aggregate less than 60% of the aggregate number
of shares of Investor Registrable Securities held by MDCP and CVCA at the time
of the issuance of the Merger Shares (as such number may be adjusted from time
to time with respect to any subdivision or combination of the Common Stock
affecting the Stockholder Shares but not taking into account any adjustment
pursuant to Section 6J of the Company's Certificate of Incorporation in the
number of shares of Conversion Stock (as defined therein)). The Merger Shares
to be included in the Weeks Stockholder Registration Statement shall be
allocated pro rata among the Weeks Stockholders based on the number of Merger
Shares owned at such time by each Weeks Stockholder. Notwithstanding any
conflicting provision in this Registration Agreement, (i) the Weeks Stockholder
Registration Statement shall be considered a "Demand Registration" and not a
"Piggyback Registration" (as defined below) and the Company shall not include in
the Weeks Stockholder Registration Statement shares held by any Person other
than the Weeks Stockholders, without the written consent of the Weeks
Stockholders and (ii) the Company shall not be required to include in the Weeks
Stockholder Registration Statement any Merger Shares held by a Weeks Stockholder
who is not then an "affiliate" of the Company within the meaning of Rule 144
under the Securities Act (unless such Merger Shares are also deemed to be owned,
for purposes of Rule 144, by a Weeks Stockholder who is an affiliate of the
Company), and shall not be required to file the Weeks Stockholder Registration
Statement if none of the Weeks Stockholders are affiliates of the Company within
the meaning of such Rule 144. A registration shall not be considered a Weeks
Stockholder Registration Statement until it has become effective, and no
registration statement shall be counted as a Weeks Stockholder Registration
Statement if the Company causes such
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registration statement to be withdrawn or suspended and, as a result of which,
the Weeks Stockholders are unable to sell at least 80% of the Merger Shares
requested to be included in such registration statement; provided, however, that
the Company shall be responsible for all registration expenses incurred in
connection with any registration statement initiated as a Weeks Stockholder
Registration Statement whether or not it become effective and whether or not
such registration statement is counted as a Weeks Stockholder Registration
Statement. The Weeks Stockholder Registration Statement shall be an underwritten
registration. Sections 4, 5 and 6 of this Registration Agreement shall apply to
any Weeks Stockholder Registration Statement as if such registration statement
were a Demand Registration.
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any
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of its securities under the Securities Act, other than pursuant to a Demand
Registration (a "Primary Registration") and the registration form to be used may
be used for the registration of Registrable Securities (a "Piggyback
Registration"), the Company shall give prompt written notice to all holders of
Registrable Securities of its intention to effect a Primary Registration and
shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within
15 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
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Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations.
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(i) If a Piggyback Registration is an underwritten Primary
Registration on behalf of the Company, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the Company,
subject to clauses (ii) and (iii) below, the Company shall include in such
registration (A) first, the securities the Company proposes to sell, (B) second,
the Registrable Securities requested to be included in such registration, pro
rata among the holders of such Registrable Securities on the basis of the number
of shares owned by each such holder, and (C) third, other securities requested
to be included in such registration.
(ii) Notwithstanding Section 2(c)(i), if in connection with a Primary
Registration which is the initial public offering of the Company's equity
securities registered under the Securities Act (the "IPO") the managing
underwriters of the IPO advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can
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be sold in an orderly manner in such offering within a price range acceptable to
the Company, the Company shall include in such registration (A) first, the
securities the Company proposes to sell and such number of Registrable
Securities requested to be included in such registration which are held by the
S&N Holders, up to that number of Registrable Securities which results in gross
proceeds payable to the S&N Holders of $25,000,000, (B) second, the Registrable
Securities (other than the Registrable Securities held by the S&N Holders)
requested to be included in such registration, pro rata among the holders of
such Registrable Securities on the basis of the number of shares owned by each
such holder, and (C) third, other securities requested to be included in such
registration; provided, however, that in the event that the managing
underwriters of the IPO reduce the total number of shares to be included by the
Company and the S&N Holders in the registration and, as a result of such
reduction the number of shares to be included by the S&N Holders is less than
the maximum number of Registrable Securities permitted by clause (A) above, then
(x) the number of shares to be sold in the IPO by the Company and by the
S&N Holders will be reduced proportionately (based upon the original amount
proposed to be sold by the Company and the S&N Holders) and (y) no Registrable
Securities (other than Registrable Securities held by the S&N Holders) or other
securities shall be included in the IPO.
(iii) Notwithstanding Section 2(c)(i), if (A) there occurs an
S&N Demand Registration pursuant to Section 1(a)(ii) which resulted in gross
proceeds payable to the S&N Holders of less than $30,000,000 (the "S&N Demand
Priority Amount"), or (B) there occurs a Primary Registration which is the
Company's IPO, as contemplated by Section 2(c)(ii) above, which results in gross
proceeds payable to the S&N Holders of less than $25,000,000 (the "S&N IPO
Priority Amount"), then the Company shall include in subsequent Piggyback
Registrations which are Primary Registrations (1) first, the securities the
Company proposes to sell, and such number of Registrable Securities requested to
be included in such registration by the S&N Holders, up to that number of
Registrable Securities which results in gross proceeds payable to the
S&N Holders, when added to the aggregate gross proceeds previously paid to the
S&N Holders under the S&N Demand Registration, any Primary Registration and all
other Piggyback Registrations, equal to (I) the S&N Demand Priority Amount, if
the event described in clause (A) above has occurred, or (II) the S&N IPO
Priority Amount, if the event described in clause (B) above has occurred,
(2) second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares owned by each such holder and (3) third, other
securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration
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exceeds the number which can be sold in an orderly manner in such offering
within the price range of the offering, the Company shall include in such
registration, (i) first, the securities requested to be included therein by the
holders requesting such registration and the Registrable Securities requested to
be included in such registration, pro rata among the holders of such securities
on the basis of the number of securities owned by each such holder, and
(ii) second, other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
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underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the holders of a majority of the Registrable
Securities included in such Piggyback Registration. Such approval shall not be
unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least 90 days has elapsed from the effective date of such
previous registration.
3. Holdback Agreements.
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(a) Each holder of Registrable Securities shall not effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period (in the case of the Company's initial public offering) or the 90-day
period (in the case of any other offering described below) beginning on the
effective date of any underwritten Demand Registration, any underwritten
Piggyback Registration in which Registrable Securities are included or any
underwritten Primary Registration (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree; provided that this obligation shall not be applicable to the
holders of Registrable Securities unless each executive officer and director of
the Company enters into an agreement upon substantially the same terms. The
Company shall cause each executive officer and director of the Company to enter
into such an agreement.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period (in
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the case of any underwritten Demand Registration or any underwritten Piggyback
Registration that constitutes the Company's initial public offering of
securities) or the 90-day period (in the case of any other underwritten Demand
Registration or underwritten Piggyback Registration) beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-4 or S-8 or any successor forms), unless the
underwriters managing the registered public offering otherwise agree, and
(ii) shall use reasonable efforts to cause each holder of at least 3% (on a
fully-diluted basis) of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use reasonable efforts, and in the case of
the S&N Demand Registration, reasonable best efforts, to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof, and pursuant thereto the Company shall as
expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use
reasonable efforts, and with respect to the S&N Demand Registration, reasonable
best efforts, to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents
shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of not less
than 180 days and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
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(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use reasonable efforts (and with respect to S&N Registrable
Securities, use reasonable best efforts) to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use reasonable
efforts, and with respect to the S&N Demand Registration, reasonable best
efforts, to secure designation of all such Registrable Securities covered by
such registration statement as a NASDAQ "national market system security" within
the meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
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a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including effecting a stock split or a combination of
shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use reasonable efforts, and with respect to the S&N
Demand Registration, reasonable best efforts, to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included; and
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use reasonable efforts, and with respect to the
S&N Demand Registration, reasonable best efforts, promptly to obtain the
withdrawal of such order.
5. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other
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Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne as provided in this Agreement, except
that the Company shall, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration, other than the
S&N Demand Registration, and each Piggyback Registration, the Company shall
reimburse the holders of Registrable Securities included in such registration
for the reasonable fees and disbursements of one counsel chosen by the holders
of a majority of the Registrable Securities included in such registration and
for the reasonable fees and disbursements of each additional counsel retained by
any holder of Registrable Securities for the purpose of rendering a legal
opinion on behalf of such holder in connection with any underwritten Demand
Registration or Piggyback Registration.
(c) In connection with the S&N Demand Registration and in connection
with the Company's IPO, if S&N Registrable Securities are included therein (if
such IPO is other than the S&N Demand Registration), the Company shall reimburse
the holders of S&N Registrable Securities included in such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of the S&N Registrable Securities included in such registration, and
any other holder of Registrable Securities for the reasonable fees and
disbursements of each additional counsel retained by such holder for the purpose
of rendering a legal opinion on behalf of such holder in connection with any
underwritten Demand Registration or Piggyback Registration.
(d) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
----------------
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any
12
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such holder expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company shall indemnify such underwriters, their officers and
directors and each Person who controls such underwriters (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
shall be individual, not joint and several, for each holder and shall be limited
to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
13
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company
also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. Participation in Underwritten Registration. No Person may participate
-------------------------------------------
in any registration hereunder which is underwritten unless such Person
(i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in paragraph 6 hereof.
8. Definitions.
------------
(a) "Chemical Registrable Securities" means (i) any shares of Common
-------------------------------
Stock issued or issuable upon conversion of the Series A-2 Preferred acquired by
CVCA pursuant to the Purchase Agreement and (ii) any Common Stock issued or
issuable with respect to the securities referred to in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular Chemical Registrable Securities, such securities shall cease to
be Chemical Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then enforce). For purposes of
this Agreement, a Person shall be deemed to be a holder of Chemical Registrable
Securities, and the Chemical Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Chemical Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Chemical Registrable Securities hereunder.
14
(b) "Common Stock" means the Company's Common Stock, par value $.001
------------
per share.
(c) "GHI Shares" means the shares of Common Stock issued in partial
----------
consideration for the purchase of all outstanding shares of capital stock of
Garnet Hill, Inc., a New Hampshire corporation ("GHI"), pursuant to the Stock
Purchase Agreement dated July 28, 1997 among the Company and the stockholders of
GHI.
(d) "Investor Registrable Securities" means (i) any shares of Common
-------------------------------
Stock issued or issuable upon conversion of the Series A Preferred and (ii) any
Common Stock issued or issuable with respect to the securities referred to in
clause (i) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Investor Registrable Securities, such
securities shall cease to be Investor Registrable Securities when they have been
distributed in the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker in
compliance with Rule 144 under the Securities Act (or any similar rule then in
force). For purposes of this Agreement, a Person shall be deemed to be a holder
of Investor Registrable Securities, and the Investor Registrable Securities
shall be deemed to be in existence, whenever such Person has the right to
acquire directly or indirectly such Investor Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected, and such
Person shall be entitled to exercise the rights of a holder of Investor
Registrable Securities hereunder.
(e) "Merger Shares" means the shares of Common Stock into which the
-------------
outstanding shares of common stock, $1.00 par value per share, of Xxxxxxx
Designs, Inc., a Georgia corporation ("BDI"), were converted pursuant to the
Agreement and Plan of Merger dated April 23, 1997 among the Company, BDI and
certain other parties thereto.
(f) "Other Registrable Securities" means (i) any shares of Common
----------------------------
Stock issued pursuant to the Exchange Agreement dated as of September 13, 1995,
between Cornerstone I and the Persons listed therein, (ii) any shares of Common
Stock issued or issuable upon conversion of the Series B Preferred, the Series C
Preferred or the Tracking Stock, (iii) the GHI Shares, (iv) the Merger Shares
and (v) any Common Stock issued or issuable with respect to the securities
referred to in clauses (i), (ii), (iii), or (iv) above by way of stock dividend
or stock split or in
15
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Other Registrable Securities, such
securities shall cease to be Other Registrable Securities when they have been
distributed to the public pursuant to a offering registered under the Securities
Act or sold to the public through a broker, dealer or market maker in compliance
with Rule 144 under the Securities Act (or any similar rule then in force). For
purposes of this Agreement, a Person shall be deemed to be a holder of Other
Registrable Securities, and the Other Registrable Securities shall be deemed to
be in existence, whenever such Person has the right to acquire directly or
indirectly such Other Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected, and such Person shall be entitled
to exercise the rights of a holder of Other Registrable Securities hereunder.
(g) "Purchase Agreement" means the Series A Preferred Stock Purchase
------------------
Agreement, dated September 13, 1995, as amended on November 15, 1995 and
January 31, 1996, among Oldco, MDCP, CVCA and certain other parties thereto.
(h) "Registrable Securities" means the Chemical Registrable
----------------------
Securities, Investor Registrable Securities, S&N Registrable Securities and
Other Registrable Securities. Notwithstanding the foregoing, securities of the
Company shall cease to be Registrable Securities if (i) the Company has been
subject to the reporting requirements under Section 13 of the Securities
Exchange Act of 1934 for at least six months, or (ii) the total amount of
securities of the Company held by such holder represents less than 1% of the
outstanding shares of Common Stock of the Company.
(i) "Reorganization Agreement" means the Agreement and Plan of
------------------------
Reorganization, dated as of August __, 1998, by and among the Company, Xxxx X.
Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxxxx and certain other parties thereto.
(j) "Series A Preferred" means the Company's Series A Convertible
-------------------
Preferred Stock, par value $.01 per share, issued pursuant to the Purchase
Agreement.
(k) "Series B Preferred" means the Company's Series B Convertible
------------------
Preferred Stock, par value $.01 per share, issued pursuant to that certain First
Amended and Restated Purchase Agreement dated as of September 13, 1995 (the
"Frontgate Purchase Agreement") among Oldco, The Cornerstone Brands Group, Inc.,
Cinmar L.P., Cinmar, Inc. and the other Persons listed on the signature pages
thereto.
(l) "Series C Preferred" means the Company's Series C Convertible
------------------
Preferred Stock, par value $0.1 per share, issued pursuant to the Frontgate
Purchase Agreement.
16
(m) "S&N Holders" means Xxxx X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X.
-----------
Perkowitz.
(n) "S&N Registrable Securities" means (i) any shares of Common Stock
--------------------------
issued to the S&N Holders pursuant to the Reorganization Agreement and (ii) any
Common Stock issued or issuable with respect to the securities referred to in
clause (i) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular S&N Registrable Securities, such securities
shall cease to be S&N Registrable Securities when they have been distributed to
the public pursuant to an offering registered under the Securities Act or sold
to the public through a broker, dealer or market maker in compliance with Rule
144 under the Securities Act (or any similar rule then enforce). For purposes
of this Agreement, a Person shall be deemed to be a holder of S&N Registrable
Securities, and the S&N Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such S&N Registrable Securities (upon conversion or exercise in connection with
a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of S&N Registrable Securities hereunder.
(o) "Tracking Stock" means the Company's Common Stock, designated as
--------------
Tracking Stock-Series 1.
(p) "Weeks Stockholders" means Xxxxx Xxxxxxx Weeks, A. Xxx Xxxxx, Xx.
------------------
and the ARW Family Trust.
(q) Unless otherwise stated, other capitalized terms contained herein
have the meanings set forth in the Purchase Agreement.
9. Miscellaneous.
--------------
(a) No Inconsistent Agreements. The Company shall not hereafter enter
---------------------------
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall
---------------------------------------------
not take any action, or permit any change to occur, with respect to its
securities which would materially adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially adversely affect
the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
17
(c) Remedies. Any Person having rights under any provision of this
---------
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity or competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
-----------------------
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of at least 66 2/3% of the
Registrable Securities; provided that (i) the provisions of paragraph 1 hereof
may not be amended without the prior written consent of the holders of at least
75% of the holders of the Investor Registrable Securities, (ii) no provision of
this Agreement may be amended to treat any holder of Investor Registrable
Securities or Other Registrable Securities differently than any other such
holder and (iii) no provision of this Agreement relating to the S&N Holders or
the S&N Registrable Securities may be amended in a manner which would have a
disproportionate adverse effect on the S&N Holders without the prior written
consent of the holders of at least 51% of the S&N Registrable Securities. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
(e) Successors and Assigns. All covenants and agreements in this
-----------------------
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) Severability. Whenever possible, each provision of this Agreement
-------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
18
(g) Counterparts. This Agreement may be executed simultaneously in
-------------
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
---------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. The corporate law of the State of Delaware shall
--------------
govern all issues and questions concerning the relative rights of the Company
and its stockholders. All other issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Massachusetts, without giving effect to
any choice of law or conflict of law rules or provisions (whether of the
Commonwealth of Massachusetts or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the Commonwealth of
Massachusetts.
(j) Notices. All notices, demands or other communications to be given
--------
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to each holder of Registrable Securities at the
address indicated in the Company's records and to the Company at the address
indicated below:
Cornerstone Brands, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(k) Joinder. Any purchaser of Registrable Securities may become a
---------
party to this Agreement upon execution and delivery of a joinder agreement
between such purchaser and holders of at least 66-2/3% of the Registrable
Securities.
19
(l) MDCP, CVCA and the Other Stockholders, Oldco and the Company
hereby acknowledge that (i) this Agreement reflects the assignment by Oldco to
the Company of Oldco's obligations under the Original Agreement, and the
assumption by the Company of Oldco's obligations under the Original Agreement
and (ii) all of the agreements contained in the Original Agreement, as amended
and restated hereby, relate solely to shares of capital stock of the Company,
and not to shares of capital stock in Oldco, and hereby consent to all such
transactions and hereby release Oldco from any and all obligations under the
Original Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CORNERSTONE BRANDS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx, Vice Chairman and
Founder
THE CORNERSTONE BRANDS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx, Vice Chairman and
Founder
[Signature Page to Amended and Restated Registration Agreement]
20
MADISON DEARBORN CAPITAL PARTNERS, L.P.
By: Madison Dearborn Partners, L.P.
Its: General Partner
By: Madison Dearborn Partners, Inc.
Its: General Partner
By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------
Its: Managing Director
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Its: General Partner
/s/ Xxxxxx X. Xxxxxxx
---------------------
XXXXXX X. XXXXXXX
D&M XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx, General Partner
[Signature Page to Amended and Restated Registration Agreement]
21
/s/ Xxxxxxx X. End
------------------
XXXXXXX X. END
W.T.E. FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. End
------------------
Xxxxxxx X. End, General Partner
/s/ Xxxx Xxxxxx
---------------
XXXX XXXXXX
XXXX X. XXXXXX 1996 IRREVOCABLE TRUST
By: /s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx, Trustee
XXXXX X. XXXXXX 1996 IRREVOCABLE TRUST
By: /s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx, Trustee
[Signature Page to Amended and Restated Registration Agreement]
22
XXXXXXX X. XXXXXX 1996 IRREVOCABLE TRUST
By: /s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx, Trustee
BOSTON CAPITAL VENTURES II, LIMITED
PARTNERSHIP
By: Boston Capital Partners II
Its: General Partner
By: Boston Capital Partners
Its: General Partner
By: /s/ H. J. von der Xxxxx
-----------------------
Its: General Partner
BOSTON CAPITAL VENTURES III, LIMITED
PARTNERSHIP
By: Boston Capital Partners III
Its: General Partner
By: BD Partners
Its: General Partner
By: /s/ H. J. von der Xxxxx
-----------------------
Its: General Partner
/s/ Xxxxxx X. Xxxxxxxx
----------------------
XXXXXX X. XXXXXXXX
[Signature Page to Amended and Restated Registration Agreement]
23
/s/ Xxx Xxxxxx
--------------
XXX XXXXXX
/s/ H. J. von der Xxxxx
-----------------------
H. JOHAN VON DER XXXXX
/s/ Xxxx X. X'Xxxxx
-------------------
XXXX X. X'XXXXX
/s/ Xxxx X. X'Xxxxx
-------------------
XXXX X. X'XXXXX, AS CUSTODIAN FOR XXXXX X. X'XXXXX
UNDER THE OHIO UNIFORM TRANSFER TO MINORS ACT-21
/s/ Xxxx X. X'Xxxxx
-------------------
XXXX X. X'XXXXX, AS CUSTODIAN FOR J. XXXXXXX X'XXXXX
UNDER THE OHIO UNIFORM ACT TRANSFER TO MINORS ACT-21
/s/ Xxxx X. X'Xxxxx
-------------------
XXXX X. X'XXXXX, AS TRUSTEE OF FIRSTCINCO
FBO XXXX X. X'XXXXX TR U/A DTD 11/10/95
/s/ Xxxx X. Xxxxxx
------------------
XXXX X. XXXXXX
________________________________________________
XXXXX X. XXXXX
[Signature Page to Amended and Restated Registration Agreement]
24
/s/ S. Xxxxxxx Xxxxxx
---------------------
S. XXXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
-----------------
XXXXXX XXXXXX
/s/ Xxxx Xxxxx
--------------
XXXX XXXXX
XXXXXXXXXX ASSOCIATES, 1992 L.P.
By: /s/ Xxxx Xxxxx
--------------
Its: Authorized Signatory
DOMINION INCOME MANAGEMENT PROFIT SHARING
By: /s/ Xxxxx Xxxxx
---------------
Its: Trustee
/s/ Xxxxxx Xxxxxxxxxx
---------------------
XXXXXX XXXXXXXXXX
/s/ Xxxxxxxx Xxxxx Xxxxxxx
--------------------------
XXXXXXXX XXXXX XXXXXXX
[Signature Page to Amended and Restated Registration Agreement]
25
/s/ Xxxxx X. Xxxxxxx
--------------------
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxxx
---------------------
XXXXX X. XXXXXXXX
/s/ Xxxxx Xxxxxxx Weeks
-----------------------
XXXXX XXXXXXX WEEKS
/s/ Xxxxxx Xxxxxx
-----------------
ESTATE OF XXXXXXX XXXXXX
/s/ A. Xxx Xxxxx, Xx.
---------------------
A. XXX XXXXX, XX.
THE ARW FAMILY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Trustee
/s/ Xxxx Xxxxxx
---------------
XXXX XXXXXX
/s/ Xxxx X. Xxxxxx
------------------
XXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
-------------------
XXXXX X. XXXXXX
[Signature Page to Amended and Restated Registration Agreement]
26
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------
XXXXXX X. XXXXXXXXX
[Signature Page to Amended and Restated Registration Agreement]
27
THE XXXXX X. XXXXXXX QUALIFIED ANNUITY TRUST - 1998 U/I
DATED JUNE 19, 1998
BY: /s/ Xxxxx X. Xxxxxxx
--------------------
TRUSTEE
THE XXXXXXX X. XXXXXXX QUALIFIED ANNUITY TRUST - 1998
U/I DATED JUNE 19, 1998
BY: /s/ Xxxxx X. Xxxxxxx
--------------------
TRUSTEE
[Signature Page to Amended and Restated Registration Agreement]
28
THE XXXXXXXX X. XXXXXXXX QUALIFIED ANNUITY TRUST - 1998
BY: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
/s/ Xxxxx X. Xxxxxxxx
---------------------
TRUSTEES
THE XXXXX X. XXXXXXXX QUALIFIED ANNUITY TRUST - 1998
BY: /s/ Xxxxx X. Xxxxxxxx
---------------------
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
TRUSTEES
[Signature Page to Amended and Restated Registration Agreement]
29
SCHEDULE A
----------
Xxxxxx X. Xxxxxxx
D&M Xxxxxxx Family Limited Partnership
Xxxxxxx X. End
W.T.E. Family Partnership
Xxxx Xxxxxx
Xxxx X. Xxxxxx 1996 Irrevocable Trust
Xxxxx X. Xxxxxx 1996 Irrevocable Trust
Xxxxxxx X. Xxxxxx 1996 Irrevocable Trust
Boston Capital Ventures II, Limited Partnership
Boston Capital Ventures III, Limited Partnership
Xxxxxx X. Xxxxxxxx
Xxx Xxxxxx
H. Johan von der Xxxxx
Xxxx X. X'Xxxxx
Xxxx X. X'Xxxxx, as Custodian for Xxxxx X. X'Xxxxx under the Ohio Uniform
Transfer to Minors Act-21
Xxxx X. X'Xxxxx as Custodian for J. Xxxxxxx X'Xxxxx under the Ohio Uniform
Transfer to Minors Act-21
Xxxx X. X'Xxxxx, as Trustee of Firstcinco FBO Xxxx X. X'Xxxxx TR
U/A DTD 11/10/95
Xxxx X. Xxxxxx
A-1
Xxxxx X. Xxxxx
S. Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxxx
Xxxxxxxxxx Associates, 1992 L.P.
Dominion Income Management Profit Sharing
Xxxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxx
The Xxxxx X. Xxxxxxx Qualified Annuity Trust - 1998 U/i Dated June 19, 1998
The Xxxxxxx X. Xxxxxxx Qualified Annuity Trust - 1998 U/i Dated June 19, 1998
Xxxxx X. Xxxxxxxx
The Xxxxxxxx X. Xxxxxxxx Qualified Annuity Trust - 1998
The Xxxxx X. Xxxxxxxx Qualified Annuity Trust - 1998
Xxxxx Xxxxxxx Weeks
Estate of Xxxxxxx Xxxxxx
A. Xxx Xxxxx, Xx.
The ARW Family Trust
Xxxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
A-2
SCHEDULE B
----------
Nationsbanc Xxxxxxxxxx Securities
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx
Xxxxx Xxxxxx
XX Xxxx. Xxxxx
Credit Suisse First Boston
Xxxxxxx Xxxxx
Xxxxxxxxx & Xxxxx LLC
B-1
