REGISTRATION RIGHTS AND STOCKHOLDERS' AGREEMENT
This REGISTRATION RIGHTS AND STOCKHOLDERS' AGREEMENT, dated as of November
21, 1996, is made by and among each of U.S. AGGREGATES, INC., a Delaware
corporation (together with its successors and assigns, the "Company"), XXXXX X.
XXXXXX ("Xxxxxx"), XXXXXXX X. XXXXX ("Xxxxx;" Xxxxx and Xxxxxx being
collectively referred to herein as "Senior Management"), GOLDER, THOMA, XXXXXXX,
XXXXXX FUND IV, L.P., a Delaware limited partnership (the "Investor"), and THE
PRUDENTIAL INSURANCE COMPANY OF AMERICA ("Prudential"). Capitalized terms used
herein have the meanings ascribed thereto in Section 13.
Senior Management and the Investor have previously acquired shares of the
voting common stock, $.01 par value, of the Company. Prudential is acquiring
warrants to purchase Common Stock pursuant to a Note and Warrant Purchase
Agreement, dated as of even date herewith (the "Note Agreement"), between
Prudential and the Company, subject to the condition, inter alia, that this
Agreement shall be executed and delivered by the parties hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Incidental Registration.
(a) Filing of Registration Statement. If the Company at any time
proposes to register any of its Common Stock (a "Registration") under the
Securities Act (other than pursuant to a registration statement on Form
S-4 or Form S-8 or any successor forms thereto, in connection with an
offer made solely to existing Security holders or employees of the
Company), for sale to the public in a Public Offering, it will, on each
such occasion, give prompt written notice to all holders of Registrable
Securities of its intention to do so, which notice shall be given to all
such holders at least thirty (30) Business Days prior to the date that a
registration statement relating to such registration is proposed to be
filed with the SEC. Upon the written request of any such holder to include
its shares under such registration statement (which request shall be made
within fifteen (15) Business Days after the receipt of any such notice and
shall specify the Registrable Securities intended to be disposed of by
such holder), the Company will use its best efforts to effect the
registration of all Registrable Securities that the Company has been so
requested to register by such holder; provided, however, that if, at any
time after giving written notice of its intention to register any Common
Stock 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 such Common Stock, the Company may, at its
election, give written notice of such determination to each such holder
and, thereupon, shall be relieved of its obligation to register any
Registrable Securities of such Persons in connection with such
registration.
(b) Selection of Underwriters. Notice of the Company's intention to
register such Common Stock shall designate the proposed underwriters of
such offering (which shall be one or more underwriting firms of recognized
standing) and shall contain the Company's agreement to use its best
efforts, if requested to do so, to arrange for such underwriters to
include in such underwriting the Registrable Securities that the Company
has been so requested to sell pursuant to this Section 1, it being
understood that the holders of Registrable Securities shall have no right
to select different underwriters for the disposition of their Registrable
Securities.
(c) Priority on Incidental Registrations. If the managing
underwriter shall advise the Company in writing (with a copy to each
holder of Registrable Securities requesting sale) that, in such
underwriter's opinion, the number of shares of Common Stock requested to
be included in such Registration exceeds the number that can be sold in
such offering within a price range acceptable to the Company (such writing
to state the basis of such opinion and the approximate number of shares of
Common Stock that may be included in such offering without such effect),
the Company will include in such Registration, to the extent of the number
of shares of Common Stock that the Company is so advised can be sold in
such offering:
(i) in the case of any registration initiated by the Company
for the purpose of selling Common Stock for its own account:
(A) first, the shares that the Company proposes to issue
and sell for its own account,
(B) second, the Registrable Securities requested to be
sold by members of the Registrable Securityholder Group, on
the one hand, and the Issuable Shares requested to be sold by
the Equity Securityholder Group, on the other hand, ratably in
accordance with the number of Issuable Shares requested to be
so sold by each such Group, and
(C) third, other Securities of the Company requested to
be included in such Registration; and
(ii) in the case of a registration initiated by any member of
the Equity Securityholder Group:
(A) first, the Registrable Securities requested to be
sold by members of the Registrable Securityholder Group, on
the one hand, and the Issuable Shares requested to be sold by
the Equity Securityholder Group, on the other hand, ratably in
accordance with the number of Issuable Shares requested to be
so sold by each such Group, and
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(B) second, other Securities of the Company requested to
be included in such Registration.
Shares of Registrable Securities to be included in any Registration to
which this Section 1(c) shall apply shall be allocated ratably among the
members of the Registrable Securityholder Group in accordance with the
number of shares each such member has proposed to include in such
Registration.
2. Registration Procedures. The Company will use its best efforts to
effect each Registration, and to cooperate with the sale of Registrable
Securities in accordance with the intended method of disposition thereof, as
quickly as practicable, and the Company will as expeditiously as possible:
(a) subject to the proviso to Section 1(a), prepare and file with
the SEC the registration statement and use its best efforts to cause the
Registration to become effective; provided, however, that before filing
any registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to the holders of the Registrable
Securities covered by such registration statement, their counsel, and the
underwriters, if any, and their counsel, successive drafts of all such
documents proposed to be filed at such times as will permit a reasonable
period for the review thereof; the Company will not file any registration
statement or amendment thereto or any prospectus or any supplement thereto
(including such documents incorporated by reference) to which the
Requisite Holders shall reasonably object based on their review of such
drafts;
(b) subject to the proviso to Section 1(a), prepare and file with
the SEC such amendments and post-effective amendments to any registration
statement and any prospectus used in connection therewith as may be
necessary to keep such registration statement effective until the earlier
of (i) one hundred twenty (120) days following the effective date of such
registration statement or (ii) the sale of all Registrable Securities
covered thereby, and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by
such registration statement; and cause the prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act;
(c) furnish to each holder of Registrable Securities included in
such Registration and the underwriter or underwriters, if any, without
charge, at least one (1) signed copy of the registration statement and any
post-effective amendment thereto, upon request, and such number of
conformed copies thereof and such number of copies of the prospectus
(including each preliminary prospectus and each prospectus filed under
Rule 424 under the Securities Act), any amendments or supplements thereto
and any documents incorporated by reference therein, as such holder or
underwriter may reasonably request in order to facilitate the disposition
of the Registrable Securities being sold by such holder (it being
understood that the Company consents to the use of the prospectus and any
amendment or supplement
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thereto by each holder of Registrable Securities covered by such
registration statement and the underwriter or underwriters, if any, in
connection with the offering and sale of the Registrable Securities
covered by the prospectus or any amendment or supplement thereto);
(d) notify each holder of the Registrable Securities of any stop
order or other order suspending the effectiveness of any registration
statement issued or threatened by the SEC in connection therewith, and
take all reasonable actions required to prevent the entry of such stop
order or to remove it or obtain its withdrawal at the earliest possible
moment if entered;
(e) if requested by the managing underwriter or underwriters, if
any, or any holder of Registrable Securities in connection with any sale
pursuant to a registration statement, promptly incorporate in a prospectus
supplement or post-effective amendment such information relating to such
underwriting as the managing underwriter or underwriters, if any, or such
holder reasonably requests to be included therein; and make all required
filings of such prospectus supplement or post-effective amendment as soon
as practicable after being notified of the matters incorporated in such
prospectus supplement or post-effective amendment;
(f) on or prior to the date on which a Registration is declared
effective, use its best efforts to register or qualify, and cooperate with
the holders of Registrable Securities included in such Registration, the
underwriter or underwriters, if any, and their counsel, in connection with
the registration or qualification of, the Registrable Securities covered
by such Registration for offer and sale under the securities or "blue sky"
laws of each state and other jurisdiction of the United States as any such
holder or the managing underwriter, if any, reasonably requests in
writing; use its best efforts to keep each such registration or
qualification effective, including through new filings, or amendments or
renewals, during the period such registration statement is required to be
kept effective; and do any and all other acts or things necessary or
advisable to enable the disposition in all such jurisdictions reasonably
requested by the holders of Registrable Securities covered by such
Registration; provided, however, that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then
so qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so
subject;
(g) in connection with any sale pursuant to a Registration,
cooperate with the holders of Registrable Securities and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends)
representing Securities to be sold under such Registration, and enable
such Securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or such holders may
request;
(h) use its best efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or
authorities within the United States and
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having jurisdiction over the Company or any Subsidiary as may reasonably
be necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Securities;
(i) enter into such agreements (including underwriting agreements in
customary form) and take such other actions as the Requisite Holders shall
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
(j) use its best efforts to obtain:
(i) at the time of effectiveness of each Registration, a
"comfort letter" from the Company's independent certified public
accountants covering such matters of the type customarily covered by
"cold comfort letters" as the Requisite Holders and the underwriters
reasonably request; and
(ii) at the time of any underwritten sale pursuant to the
registration statement, a "bring-down comfort letter," dated as of
the date of such sale, from the Company's independent certified
public accountants covering such matters of the type customarily
covered by comfort letters as the Requisite Holders and the
underwriters reasonably request;
(k) use its best efforts to obtain, at the time of effectiveness of
each Registration and at the time of any sale pursuant to each
Registration, an opinion or opinions, favorable to the Requisite Holders
in form and scope, from counsel for the Company in customary form;
(l) notify each seller of Registrable Securities covered by such
Registration, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such Registration, 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, and promptly prepare, file with the SEC
and furnish to such seller 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 or prospective 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 the
light of the circumstances under which they are made;
(m) otherwise comply with all applicable rules and regulations of
the SEC, and make generally available to its security holders (as
contemplated by Section 11(a) under the Securities Act) an earnings
statement satisfying the provisions of Rule 158 under the Securities Act
no later than ninety (90) days after the end of the twelve (12) month
period beginning with the first month of the Company's first fiscal
quarter commencing after the
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effective date of the registration statement, which statement shall cover
said twelve (12) month period;
(n) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by each Registration from
and after a date not later than the effective date of such Registration;
and
(o) cause all Registrable Securities covered by such Registration to
be listed on each securities exchange on which similar equity Securities
issued by the Company are then listed and, if not so listed, to be listed
on the Nasdaq National Market ("Nasdaq Market") and, if listed on the
Nasdaq Market, use its best efforts to secure designation of all such
Registrable Securities covered by such registration statement as a Nasdaq
"National Market System security" within the meaning of Rule 11Aa2-1 of
the SEC or, failing that, to secure Nasdaq Market 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 National Association
of Securities Dealers, Inc.
The Company may require each holder of Registrable Securities that will be
included in such Registration to furnish the Company with such information in
respect of such holder of its Registrable Securities that will be included in
such Registration as the Company may reasonably request in writing and as is
required by applicable laws or regulations.
3. Reasonable Investigation. The Company shall:
(a) give the holders of Registrable Securities, their underwriters,
if any, and their respective counsel and accountants the opportunity to
participate in the preparation of the registration statement, each
prospectus included therein or filed with the SEC and each amendment
thereof or supplement thereto;
(b) give each such holder and underwriter reasonable opportunities
to discuss the business of the Company with its officers, counsel and the
independent public accountants who have certified its financial
statements;
(c) make available for inspection by any holder of Registrable
Securities included in any Registration, any underwriter participating in
any disposition pursuant to any Registration, 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
(d) cause the Company's officers, directors and employees to supply
all information reasonably requested by any such Person in connection with
such Registration;
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in each such case, as shall be reasonably necessary, in the opinion of such
holder or such underwriter, to enable it to conduct a "reasonable investigation"
within the meaning of the section 11(b)(3) of the Securities Act and to satisfy
the requirement of reasonable care imposed by section 12(a)(2) of the Securities
Act.
4. Registration Expenses. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities, including,
without limitation, any such registration not effected by the Company.
5. Indemnification; Contribution.
(a) Indemnification by the Company. The Company shall indemnify, to
the fullest extent permitted by law, each holder of Registrable
Securities, its officers, directors and agents, if any, and each Person,
if any, who controls such holder within the meaning of section 15 of the
Securities Act, against all losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses (under the Securities Act or
common law or otherwise), joint or several, resulting from any violation
by the Company of the provisions of the Securities Act or any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented if
amended or supplemented) or any preliminary prospectus or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case
of any prospectus, in light of the circumstances under which they were
made) not misleading, except to the extent that such losses, claims,
damages, liabilities (or proceedings in respect thereof) or expenses are
caused by any untrue statement or alleged untrue statement contained in or
by any omission or alleged omission from information concerning any holder
of Registrable Securities furnished in writing to the Company by such
holder expressly for use therein. If the offering pursuant to any
registration statement provided for under this Section 5 is made through
underwriters, no action or failure to act on the part of such underwriters
(whether or not such underwriter is an Affiliate of any holder of
Registrable Securities) shall affect the obligations of the Company to
indemnify any holder of Registrable Securities or any other Person
pursuant to the preceding sentence.
(b) Indemnification by the Holders. In connection with any
registration statement in which a holder of Registrable Securities is
participating, each such holder, severally and not jointly, shall
indemnify, to the fullest extent permitted by law, the Company, each
underwriter (if the underwriter so requires) and their respective
officers, directors and agents, if any, and each Person, if any, who
controls the Company or such underwriter within the meaning of section 15
of the Securities Act, against any losses, claims, damages, liabilities
(or proceedings in respect thereof) and expenses resulting from any untrue
statement or alleged untrue statement of a material fact or any omission
or alleged omission of a material fact required to be stated in the
registration statement or prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or necessary to
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make the statements therein (in the case of any prospectus, in light of
the circumstances under which they were made) not misleading, but only to
the extent that such untrue statement is contained in or such omission is
from information concerning a holder furnished in writing by such holder
expressly for use therein; provided, however, that such holder's
obligations hereunder shall be limited to an amount equal to the proceeds
to such holder of the Registrable Securities sold pursuant to such
registration statement.
(c) Control of Defense. Any Person entitled to indemnification under
the provisions of this Section 5 shall give prompt notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and 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, permit such indemnifying party to
assume the defense of such claim, with counsel reasonably satisfactory to
the indemnified party; and if such defense is so assumed, such
indemnifying party shall not enter into any settlement without the consent
of the indemnified party if such settlement attributes liability to the
indemnified party and such indemnifying party shall not be subject to any
liability for any settlement made without its consent (which shall not be
unreasonably withheld); and any underwriting agreement entered into with
respect to any registration statement provided for under this Agreement
shall so provide. In the event an indemnifying party shall not be entitled
(or elects not) to assume the defense of a claim, such indemnifying party
shall not be obligated to pay the fees and expenses of more than one
counsel or firm of counsel for all parties indemnified by such
indemnifying party in respect of such claim, unless in the reasonable
judgment of any such indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties
in respect to such claim.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities or expenses:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other; or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such
proportion as is appropriate to reflect not only the relative
benefits received by the indemnifying party on the one hand and the
indemnified party on the other but also the relative fault of the
indemnifying party and the indemnified party as well as any other
relevant equitable considerations.
Notwithstanding the foregoing, no holder of Registrable Securities shall
be required to contribute any amount in excess of the amount such holder
would have been required to pay to an indemnified party if the indemnity
under Section 5(b) were available. No Person guilty
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of fraudulent misrepresentation (within the meaning of section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation. The obligation of any
Person to contribute pursuant to this Section 5 shall be several and not
joint.
(e) Timing of Payments. An indemnifying party shall make payments of
all amounts required to be made pursuant to the foregoing provisions of
this Section 5 to or for the account of the indemnified party from time to
time promptly upon receipt of bills or invoices relating thereto or when
otherwise due or payable.
(f) Survival. The indemnity and contribution agreements contained in
this Section 5 shall remain in full force and effect regardless of any
investigation made by or on behalf of a participating holder of
Registrable Securities, its officers, directors, agents or any Person who
controls such holder as aforesaid, and shall survive the transfer of such
Securities by such holder.
6. Holdback Agreements; Registration Rights to Others.
(a) In connection with each underwritten sale of Registrable
Securities, the Company agrees, and each holder of Registrable Securities
by acquisition of such Registrable Securities agrees, to enter into
customary holdback agreements concerning sale or distribution of
Registrable Securities and other equity Securities of the Company, except,
in the case of any holder of Registrable Securities, to the extent that
such holder is prohibited by applicable law or exercise of fiduciary
duties from agreeing to withhold Registrable Securities from sale or is
acting in its capacity as a fiduciary or investment adviser. Without
limiting the scope of the term "fiduciary," a holder shall be deemed to be
acting as a fiduciary or an investment adviser if its actions or the
Registrable Securities proposed to be sold are subject to the Employee
Retirement Income Security Act of 1974, as amended, or the Investment
Company Act of 1940, as amended, or if such Registrable Securities are
held in a separate account under applicable insurance law or regulation.
(b) If the Company shall at any time after the date hereof provide
to any holder of any Securities of the Company rights with respect to the
registration of such Securities under the Securities Act, such rights
shall not be in conflict with or adversely affect any of the rights
provided in this Agreement to the holders of Registrable Securities,
without the written consent of the Required Holders.
7. Other Registration of Common Stock. If any shares of Common Stock
required to be reserved for purposes of exercise of Warrants or conversion of
any class of Common Stock into any other class of Common Stock require
registration with or approval of any governmental authority under any federal or
state law (other than the Securities Act) before such shares may be issued upon
conversion, the Company will, at its expense and as expeditiously as possible,
use its best efforts to cause such shares to be duly registered or approved, as
the case may be.
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8. Availability of Information. At any time that any class of the Common
Stock is registered under section 12(b) or section 12(g) of the Exchange Act,
the Company will comply with the reporting requirements of sections 13 and 15(d)
of the Exchange Act (whether or not it shall be required to do so pursuant to
such Sections) and will comply with all other public information reporting
requirements of the SEC from time to time in effect. In addition, the Company
shall file such reports and information, and shall make available to the public
and to the holders of Registrable Securities such information, as shall be
necessary to permit such holders to offer and sell Issuable Shares pursuant to
the provisions of Rules 144 and 144A promulgated under the Securities Act. The
Company will also cooperate with each such holder in supplying such information
as may be necessary for such holder to complete and file any information
reporting forms presently or hereafter required by the SEC as a condition to the
availability of an exemption from the registration provisions of the Securities
Act in connection with the sale of any Issuable Shares. The Company will furnish
to each such holder, promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available generally by the Company to its stockholders, and copies of all
regular and periodic reports and all registration statements and prospectuses
filed by the Company with any securities exchange or with the SEC.
9. Tag-Along Rights in Respect of Sales of Equity Securityholder Group
Shares.
(a) Right to Sell Proportionate Number of Shares. Each member of the
Equity Securityholder Group hereby agrees that it will not Transfer all or
any portion of the Issuable Shares owned by it (other than in an Exempt
Transfer) to any third party unless, as part of such transaction, the
Registrable Securityholder Group shall have the right (but, subject to
Section 10, not the obligation) to Transfer Warrant Shares equal to the
Securityholder Percentage of all Issuable Shares to be purchased by such
third party at the same price and on the same terms as the Equity
Securityholder Group. Each member of the Registrable Securityholder Group
shall have the right to Transfer its Warrant Shares ratably in accordance
with the respective number of Warrant Shares held by all other such
members that will be Transferring Warrant Shares to such third party.
(b) Definition of Securityholder Percentage. "Securityholder
Percentage" means the quotient, expressed as a percentage, of (a) the
number of Issuable Shares held by the Registrable Securityholder Group
immediately prior to such Transfer, divided by (b) the aggregate number of
Issuable Shares held by the Equity Securityholder Group and the
Registrable Securityholder Group immediately prior to such Transfer.
(c) Notice of Proposed Sale. Any member of the Equity Securityholder
Group intending to sell any Issuable Shares shall provide to each member
of the Registrable Securityholder Group written notice of its intention to
sell such Issuable Shares not less than twenty-five (25) days prior to the
closing of such proposed sale. Such written notice (the "Notice of Sale")
shall
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(i) specify in detail the terms of such proposed sale
(including the type of Security proposed to be sold, the number of
Issuable Shares of the Equity Securityholder Group offered to be
sold, the price per share, and the number of Issuable Shares which
will be held by the Equity Securityholder Group immediately prior to
such proposed sale),
(ii) state the date on which such proposed sale is to be
consummated, and
(iii) designate one party to whom notice of the determination
to participate in such proposed sale should be delivered.
Promptly upon the written request of any member of the Equity
Securityholder Group, the Company shall supply such holder with the names
and addresses for notices to the members of the Registrable Securityholder
Group.
(d) Election by Holders. Upon receipt of a Notice of Sale, each
member of the Registrable Securityholder Group shall have twenty (20) days
to deliver written notice of its election to participate in such sale,
which notice shall specify the number of Warrant Shares that it elects to
sell and the number of Warrant Shares which will be held immediately prior
to such proposed sale.
(e) Closing of Sale. Each member of the Registrable Securityholder
Group electing to participate in a sale described in any Notice of Sale
shall deliver to the purchaser specified in such Notice of Sale, against
payment of the total purchase price for the Warrant Shares to be purchased
(at the price per share specified in such Notice of Sale), on the closing
date specified in such Notice of Sale, a certificate or certificates
representing the number of Warrant Shares that it has elected to sell
pursuant to this Section 9, together with appropriate instruments of
transfer duly endorsed in blank, and a certificate containing
representations and warranties as to such holder's title to such Warrant
Shares, the absence of Liens thereon, and such holder's authority to
convey such Warrant Shares.
(f) Expenses of Sale. All members of the Equity Securityholder Group
and the Registrable Securityholder Group will bear their own expenses and
costs of any sale of Warrant Shares or Issuable Shares, as the case may
be, pursuant to this Section 9.
10. Restrictions on Transfer of Warrant Shares.
(a) Transfer of Warrant Shares. No holder of Warrant Shares shall
sell, transfer, assign, pledge or otherwise dispose of (whether with or
without consideration and whether voluntarily or involuntarily or by
operation of law) any interest in such holder's Warrant Shares (a
"Transfer"), except pursuant to the provisions of this Section 10,
pursuant to a Public Sale, or pursuant to any transfer subsequent to a
Public Sale. No holder of Warrant Shares shall consummate any Transfer
(other than pursuant to a
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Public Sale, or pursuant to any transfer subsequent to a Public Sale)
until thirty (30) days after the delivery to the Company and the Investor
of such holder's Offer Notice, unless the parties to the Transfer have
been finally determined pursuant to this Section 10 prior to the
expiration of such thirty (30) day period (the "Election Period").
(b) First Offer Right. At least thirty (30) days prior to making any
Transfer of any Warrant Shares (other than pursuant to a Public Sale, or
pursuant to any transfer subsequent to a Public Sale), the transferring
Stockholder (the "Transferring Stockholder") shall deliver a written
notice (an "Offer Notice") to the Company and the Investor. The Offer
Notice shall disclose in reasonable detail the proposed number of Warrant
Shares to be transferred, the proposed terms and conditions of the
Transfer and the identity of the prospective transferee(s) (if known). The
Company may elect to purchase all (but not less than all) of the Warrant
Shares specified in the Offer Notice at the price and on the terms
specified therein by delivering written notice of such election to the
Transferring Stockholder and the Investor as soon as practical but in any
event within ten (10) days after the delivery of the Offer Notice. If the
Company has not elected to purchase all of the Warrant Shares within such
ten (10) day period, the Investor may elect to purchase all (but not less
than all) of the Warrant Shares specified in the Offer Notice at the price
and on the terms specified therein by delivering written notice of such
election to the Transferring Stockholder as soon as practical but in any
event within twenty (20) days after delivery of the Offer Notice. If the
Company or the Investor has elected to purchase Warrant Shares from the
Transferring Stockholder, the transfer of such shares shall be consummated
as soon as practical after the delivery of the election notice to the
Transferring Stockholder, but in any event within fifteen (15) days after
the expiration of the Election Period. If neither the Company nor the
Investor has elected to purchase all of the Warrant Shares being offered,
the Transferring Stockholder may, within one hundred twenty (120) days
after the expiration of the Election Period and subject to the provisions
of Section 10(c), transfer such Warrant Shares to one or more third
parties at a price no less than the price per share specified in the Offer
Notice and on other terms no more favorable to the transferees thereof
than offered to the Company and the Investor in the Offer Notice. Any
Warrant Shares not transferred within such one hundred twenty (120) day
period shall be reoffered to the Company and the Investor under this
Section 10(b) prior to any subsequent Transfer. The purchase price
specified in any Offer Notice shall be payable solely in cash at the
closing of the transaction or in installments over time.
(c) Transfer. Prior to transferring any Warrant Shares (other than
pursuant to a Public Sale, pursuant to any transfer subsequent to a Public
Sale, or a Sale of the Company) to any Person, the Transferring
Stockholder shall cause the prospective transferee to execute and deliver
to the Company a counterpart of this Agreement.
(d) Competitors. No holder of Warrant Shares, prior to a Public Sale
thereof, shall Transfer any of such Warrant Shares to a Competitor.
12
(e) Termination of Restrictions. The restrictions set forth in this
Section 10 shall continue with respect to each Registrable Security until
the earlier of (i) the date on which such Registrable Security has been
transferred in a Public Sale or (ii) the date on which such Registrable
Security has been transferred to the Company or the Investor pursuant to
this Section 10.
11. Public Sale. In the event that a Public Sale is an underwritten
offering and the managing underwriters advise the Company in writing that in
their opinion the Company's capital stock structure would adversely affect the
marketability of the Issuable Shares to be sold in such Public Sale, each holder
of Warrant Shares shall consent to and vote for a recapitalization,
reorganization and/or exchange of the Warrant Shares into Securities that the
managing underwriters, the Board of Directors and the Investor find acceptable
and shall take all necessary or desirable actions in connection with the
consummation of such recapitalization, reorganization and/or exchange; provided
that the Securities into which the Warrant Shares have been converted shall
reflect and are consistent with the rights and preferences set forth in the
Company's Certificate of Incorporation as in effect immediately prior to such
Public Sale; provided, further, that each holder of Warrant Shares shall only be
required to take any such necessary or desirable actions if the costs and
expenses thereof, if any, are paid by the Company and, in the reasonable
judgment of such holder, such actions do not involve any risk of liability to
such holder.
12. Sale of the Company.
(a) If the Board of Directors and the holders of a majority of the
shares of Common Stock then outstanding approve a Sale of the Company (an
"Approved Sale"), each holder of Warrant Shares shall vote for, consent to
and raise no objections against such Approved Sale. If the Approved Sale
is structured as (i) a merger or consolidation, each holder of Warrant
Shares shall waive any dissenters' rights, appraisal rights or similar
rights in connection with such merger or consolidation or (ii) a sale of
stock, each holder of Warrant Shares shall agree to sell all of its
Warrant Shares on the terms and conditions approved by the Board of
Directors and the holders of a majority of the Common Stock then
outstanding for the sale of all Common Stock in such Approved Sale;
provided that the maximum liability to each such holder arising from such
terms and conditions shall not exceed the amount it shall have received
for the sale of its Warrant Shares in connection with such Approved Sale.
Each holder of Warrant Shares shall take all necessary or desirable
actions in connection with the consummation of the Approved Sale as
requested by the Company; provided that each holder of Warrant Shares
shall only be required to take any such necessary or desirable actions if
the costs and expenses thereof, if any, are paid by the Company and, in
the reasonable judgment of such holder, such actions do not involve any
risk of liability to such holder in excess of the amount it shall have
received for the sale of its Warrant Shares in connection with such
Approved Sale and then only if any such risk is borne proportionately by
all sellers of Common Stock in such Approved Sale.
13
(b) The obligations of the holders of Warrant Shares with respect to
the Approved Sale of the Company are subject to the satisfaction of the
following conditions: (i) upon the consummation of the Approved Sale, each
holder of a class of stock shall receive the same form of consideration
and the same amount of consideration per share as any other holders of
such class of stock; (ii) if any holders of a class of stock are given an
option as to the form and amount of consideration to be received, each
holder of such class of stock shall be given the same option; and (iii)
each holder of then currently exercisable rights to acquire shares of a
class of stock shall be given a reasonable opportunity to exercise such
rights prior to the consummation of the Approved Sale and participate in
such sale as holders of such class of stock upon the consummation of the
Approved Sale.
13. Definitions. For the purpose of this Agreement, the following terms
shall have the meanings set forth below or set forth in the Section hereof
following such term:
Affiliate -- means at any time, with respect to any Person, any other
Person (other than a member of the Equity Securityholder Group or the
Registrable Securityholder Group):
(a) that directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
Person;
(b) that beneficially owns or holds five percent (5%) or more of any
class of the Voting Stock of such Person;
(c) five percent (5%) or more of the Voting Stock (or in the case of
a Person that is not a corporation, five percent (5%) or more of the
equity interest) of which is beneficially owned or held, directly or
indirectly, by such Person; or
(d) that is a partner of such first Person if such first Person is a
partnership;
in each case at such time.
As used in this definition,
control -- means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
Voting Stock -- means, with respect to any corporation, any shares
of stock of such corporation whose holders are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether at the time any stock of any other class or
classes shall have or might have voting power by reason of the happening
of any contingency).
14
Agreement, this -- and references thereto shall mean this
Registration Rights and Stockholders' Agreement, as it may from time to
time be amended or supplemented.
Approved Sale -- has the meaning set forth in Section 12(a).
Board of Directors -- means the board of directors of the Company or
any committee thereof that, in the instance, shall have the lawful power
to exercise the power and authority of such board of directors.
Business Day -- means a day other than a Saturday, a Sunday or a day
on which commercial banks in New York City are required or permitted by
law (other than a general banking moratorium or holiday for a period
exceeding four (4) consecutive days) to be closed.
Common Stock -- means the shares of voting common stock, $.01 par
value, of the Company, and any other shares of stock of the Company of any
class that is not preferred, as to payment of dividends, payment upon a
liquidation or dissolution of the Company, or both, over any other class
of capital stock of the Company.
Company -- has the meaning specified in the introductory paragraph
hereof.
Competitor -- means any Person engaged in the aggregates, or related
materials and services, business; provided that in no event shall any
insurance company, bank, bank holding company, investment company, savings
institution or trust company, investment banking firm, fraternal benefit
society, pension, retirement or profit-sharing trust or fund, or any other
similar financial institution be deemed to be a Competitor for purposes of
this Agreement.
Election Period -- has the meaning specified in Section 10(a).
Equity Securityholder Group -- means Senior Management and the
Investor.
Exchange Act -- means the Securities Exchange Act of 1934, as
amended from time to time.
Exempt Transfer -- means, with respect to any Issuable Shares of the
Equity Securityholder Group, (i) any sale of such Issuable Shares in
connection with a Public Offering, (ii) any sale of Issuable Shares
pursuant to Rule 144 under the Securities Act so long as the volume
limitations set forth in such Rule apply to such sale, (iii) any Transfer
among members of the Equity Securityholder Group or to the Company, or
(iv) any Transfer among Affiliates of the Investor, among family members
of the Equity Securityholder Group, or pursuant to the laws of descent and
distribution; provided, however, that the Company, in the case of any
Transfer to the Company pursuant to clause (iii) in contemplation of a
subsequent reissuance thereof, and any transferee, in the case of a
Transfer pursuant to clause (iv), shall agree in writing to be bound
15
by the provisions of Section 9 with respect to the Issuable Shares that
were the subject of such Transfer.
Expiration Date -- has the meaning specified in the Warrant
Agreement.
Group -- means either or both of the Equity Securityholder Group and
the Registrable Securityholder Group, as the context requires.
Xxxxxx -- has the meaning specified in the introductory paragraph
hereof.
Independent Third Party -- means any Person that (a) does not own in
excess of five percent (5%) of the Common Stock on a fully-diluted basis,
(b) is not controlling, controlled by or under common control with any
such five percent (5%) owner of the Common Stock, (c) is not the spouse,
ancestor or descendant (by birth or adoption) of any such five percent
(5%) owner of the Common Stock, and (d) is not an Affiliate.
Investor -- has the meaning specified in the introductory paragraph
hereof.
Issuable Share -- means and includes at any time,
(a) a share of issued and outstanding Common Stock; and
(b) a Right (including, without limitation, a Warrant), and (without
duplication) all shares of Common Stock issuable upon exercise of such
Right, in each case at such time.
For purposes of this definition of "Issuable Share," a Right to acquire
one share of Common Stock shall constitute one Issuable Share, and a
Person shall be deemed to own an Issuable Share if such Person has a Right
to acquire such share whether or not such Right is exercisable at such
time.
Lien -- means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any
jurisdiction).
Majority Equity Securityholders -- means, at any time, any group
comprised of members of the Equity Securityholder Group holding, in the
aggregate, a majority by number of Issuable Shares held by the Equity
Securityholder Group at such time.
Nasdaq Market -- has the meaning set forth in Section 2(o).
Note Agreement -- has the meaning set forth in the second paragraph
of this Agreement.
16
Notice of Sale -- has the meaning specified in Section 9(c).
Offer Notice -- has the meaning specified in Section 10(b).
Person -- means an individual, partnership, corporation, limited
liability company, joint venture, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
Preferred Stock -- means and includes all capital stock of the
Company of any class which is preferred, as to payment of dividends,
payment upon a liquidation or dissolution of the Company or both, over the
Common Stock.
Property -- means any interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible.
Prudential -- has the meaning specified in the introductory
paragraph hereof.
Public Offering -- means, with respect to any Issuable Shares, any
sale thereof in a transaction either registered under, or requiring
registration under, section 5 of the Securities Act.
Public Sale -- means any sale of Issuable Shares to the public
pursuant to an offering registered under the Securities Act or to the
public through a broker, dealer or market maker pursuant to the provisions
of Rule 144 adopted under the Securities Act.
Registrable Securities -- means:
(a) any shares of Common Stock that have been issued upon the
exercise of any Warrant; and
(b) any shares of Common Stock that are issuable upon the
exercise of the Warrants.
For purposes of Section 1 and the definition of "Requisite Holders"
herein, holders of Warrants at any time shall be deemed to be holders of
Registrable Securities described in clause (b) of this definition that are
at such time issuable upon exercise in full of such Warrants.
As to any particular Registrable Securities once issued, such
Securities shall cease to be Registrable Securities:
(i) when a registration statement with respect to the sale of
such Securities shall have become effective under the Securities Act
and such Securities shall have been disposed of in accordance with
such registration statement;
17
(ii) when such Securities shall have been distributed to the
public pursuant to Rule 144 (or any successor provision) under the
Securities Act;
(iii) when such Securities shall have been otherwise
transferred and subsequent disposition of them shall not require
registration or qualification under the Securities Act or any
similar state law then in force; or
(iv) when such Securities shall have ceased to be outstanding
or (with respect to Registrable Securities described in clause (b)
of this definition) issuable upon exercise of the Warrants.
Registrable Securityholder Group -- means, at any time, the holders
(other than the Company, any Subsidiary or any Affiliate of the Company)
of Registrable Securities at such time.
Registration -- has the meaning specified in Section 1(a).
Registration Expenses -- means all expenses incident to the
Company's performance of or compliance with Section 1, including, without
limitation:
(a) all registration and filing fees;
(b) fees and expenses of compliance with securities or blue
sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable
Securities);
(c) expenses of printing certificates for the Registrable
Securities in a form eligible for deposit with Depositary Trust
Company;
(d) messenger and delivery expenses;
(e) internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal
or accounting duties);
(f) fees and disbursements of counsel for the Company and its
independent certified public accountants (including the expenses of
any management review, cold comfort letters or any special audits
required by or incident to such performance and compliance);
(g) securities acts liability insurance (if the Company elects
to obtain such insurance);
(h) the reasonable fees and expenses of any special experts
retained by the Company in connection with such registration;
18
(i) fees and expenses of other Persons retained by the
Company; and
(j) fees and expenses of counsel for holders of Registrable
Securities, selected by the Requisite Holders;
but not including any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities or fees and expenses of
more than one counsel representing the holders of Registrable Securities
or any other selling expenses, discounts or commissions incurred in
connection with the sale of Registrable Securities.
Required Holders -- means, at any time, the holders of a majority of
the Registrable Securities at such time.
Requisite Holders -- means, with respect to any registration or
proposed registration of Registrable Securities pursuant to Section 1, any
holder or holders of at least a majority of the shares of Registrable
Securities (excluding any shares of Registrable Securities directly or
indirectly held by the Company or any Subsidiary or Affiliate of the
Company) to be so registered.
Right -- means and includes:
(a) any warrant (including, without limitation, any Warrant)
or any option (including, without limitation, employee stock
options) to acquire Common Stock;
(b) any right issued to holders of the Common Stock, or any
class thereof, permitting the holders thereof to subscribe to shares
of additional Common Stock (pursuant to a rights offering or
otherwise);
(c) any right to acquire Common Stock pursuant to the
provisions of any Security convertible or exchangeable into Common
Stock; and
(d) any similar right permitting the holder thereof to
subscribe for or purchase shares of Common Stock.
Sale of the Company -- means the sale of the Company to an
Independent Third Party pursuant to which such party or parties acquire
(i) capital stock of the Company possessing the voting power under normal
circumstances to elect a majority of the Board of Directors (whether by
merger, consolidation or sale or transfer of the Company's capital stock)
or (ii) all or substantially all of the Company's assets determined on a
consolidated basis.
SEC -- means, at any time, the Securities and Exchange Commission or
any other federal agency at such time administering the Securities Act.
Securities Act -- means the Securities Act of 1933, as amended.
19
Security -- has the meaning specified in section 2(1) of the
Securities Act.
Securityholder Percentage -- has the meaning set forth in Section
9(b).
Senior Management -- has the meaning specified in the introductory
paragraph hereof.
Stone -- has the meaning specified in the introductory paragraph
hereof.
Subsidiary -- means, at any time, each corporation, association,
limited liability company or other business entity which qualifies as a
subsidiary of the Company that is properly included in a consolidated
financial statement of the Company and its subsidiaries in accordance with
generally accepted accounting principles at such time.
Transfer -- means, with respect to any Warrants or other Issuable
Shares, to sell, transfer or otherwise dispose of such Warrants or other
Issuable Shares, as the case may be, or any interest therein.
Transferring Stockholder -- has the meaning set forth in Section
10(b).
Warrant -- shall mean each Warrant to purchase shares of the Common
Stock issued pursuant to the Warrant Agreement.
Warrant Agreement -- means the Warrant Agreement, dated as of even
date herewith, between Prudential and the Company, as it may from time to
time be amended or supplemented.
Warrant Shares -- means the following:
(a) any of the Warrants; or
(b) any shares of Common Stock that have been issued upon the
exercise of any Warrant.
14. MISCELLANEOUS
14.1 Notices. All communications hereunder shall be in writing and shall
be delivered either by national overnight courier or by facsimile transmission
(confirmed by delivery by national overnight courier sent on the day of the
sending of such facsimile transmission), and shall be addressed to the following
addresses:
(a) if to Harris, Stone, the Investor or Prudential, at such
holder's address set forth on Annex 1 to this Agreement, or at such other
address as such holder shall have specified to the Company in writing;
20
(b) if to any registered transferee of all or any part of any
Registrable Securities, addressed to such transferee at such address as
such transferee shall have specified to the Company in writing or, if such
transferee shall not have so specified an address to the Company, then
addressed to such transferee in care of the last holder of such
Registrable Securities that shall have so specified an address to the
Company; and
(c) if to the Company, at the address set forth on Annex 2 to this
Agreement, or at such other address as the Company shall have specified to
each holder of Registrable Securities in writing.
Any communication addressed and delivered as herein provided shall be deemed to
be received when actually delivered to the address of the addressee (whether or
not delivery is accepted) or received by the telecopy machine of the recipient.
Any communication not so addressed and delivered shall be ineffective.
14.2 Amendment and Waiver.
(a) The provisions of Section 14, and of any term defined in Section
13 as used in such Section, may be amended, modified or supplemented, and
compliance with such Section waived, only by a writing duly executed by or
on behalf of the Required Holders and the Company.
(b) The provisions of Sections 1 through 8, inclusive, and of
Sections 11 and 12, and any term defined in Section 13 as used in any such
Section, may be amended, modified or supplemented only by a writing duly
executed by or on behalf of the Required Holders and the Company;
provided, however, that compliance by the Company with the provisions of
any such Section with respect to any particular registration may be waived
by the Requisite Holders; and provided, further, however, that no such
amendment, modification or supplement of Section 1(c)(i) or 1(c)(ii) that
adversely affects any member of either Group shall be effective as against
such member unless consented to in writing by such member.
(c) The provisions of Sections 9 and 10, and of any term defined in
Section 13 as used in either such Section, may be amended, modified or
supplemented, and compliance with such Section waived, only by a writing
duly executed by or on behalf of the Required Holders, the Majority Equity
Securityholders and the Company.
14.3 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
21
14.4 Jurisdiction; Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW
YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS AND
INSTRUMENTS CONTEMPLATED HEREBY AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT. NONE OF THE PARTIES HERETO SHALL SEEK
A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF OR OTHERWISE RELATED TO THIS AGREEMENT
AND EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY AND ALL RIGHT TO ANY SUCH JURY TRIAL AND ANY RIGHT EACH MAY HAVE TO
ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT
ANY SUCH PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 14.4.
14.5 Directly or Indirectly. Where any provision in this Agreement refers
to any action to be taken by any Person, or that such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person, including actions taken by or on behalf of any
partnership in which such Person is a general partner.
14.6 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
14.7 Successors and Assigns. All covenants and other agreements in this
Agreement contained 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. Notwithstanding the foregoing sentence, the
Company may not assign any of its rights, duties or obligations hereunder
without the prior written consent of all holders of Registrable Securities.
14.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument.
14.9 Descriptive Headings. The descriptive headings of the several
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
14.10 Preferred Stock.
22
(a) Consideration. The Company agrees that it will not issue any
Preferred Stock for less than the stated liquidation value thereof or
having a dividend rate higher than prevailing market dividend terms at the
time of the issue thereof. The restrictions set forth in this Section
14.10(a) shall terminate on the date any Warrant Shares are sold pursuant
to a Public Sale.
(b) Terms. After giving effect to the amendment of the Company's
certificate of incorporation effected on November 21, 1996, the Company
will not, at any time on or prior to the Expiration Date,
(i) amend or modify any term or provision of its certificate
of incorporation which would increase the dividend or liquidation
value of the Preferred Stock authorized as of the date hereof, or
(ii) authorize any other class of Preferred Stock having
redemption terms and provisions that are not subject to the
restrictions set forth in Section 4L of the Company's certificate of
incorporation as of the date of this Agreement.
14.11 Registration Rights and Stockholders' Agreement. Each holder of
Warrant Shares shall be bound to vote such Warrant Shares to achieve the results
set forth in clauses (i) to (iv), inclusive, of Section 1(a) of the
Stockholders' Agreement, dated as of January 24, 1994, by and among the Company
(formerly USAI Acquisition Corp.), Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV L.P.,
a Delaware limited partnership, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx
Xxxxxx, Xxxxxx X. Xxxxxxxxx (by joinder on August 1, 1994), Xxxxxxx Xxxxxx (by
joinder on October 31, 1994), Xxxxxx Xxxxxx, Xx. (by joinder on August 5, 1994),
and Xxxxx X. Xxxxxxx (by joinder on November 1, 1994), as in effect on the date
hereof, so long as the Company shall have given adequate advance written notice
of the manner in which the Warrant Shares should be voted to achieve such
results.
[Remainder of page intentionally blank. Next page is signature page.]
23
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered (in the case of each corporation which is a party
hereto, by one of its duly authorized officers or representatives).
U.S. AGGREGATES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President-
Development,
Chief Financial Officer,
Treasurer and Secretary
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
-----------------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By:/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Principal
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
24
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice-President
25
ANNEX 1
ADDRESSES OF HARRIS, STONE, THE INVESTOR AND PRUDENTIAL
Xxxxx X. Xxxxxx
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxx
c/o U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Prudential Capital Group
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Annex 1-1
ANNEX 2
ADDRESS OF COMPANY
U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Annex 2-1
