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Exhibit 4.9
REGISTRATION RIGHTS AGREEMENT
among
XXXXXXX FASTENERS INC.
and
THE INVESTORS PARTY HERETO
Dated as of August 3, 2001
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.......................................................................... 1
ARTICLE II
REGISTRATION AND RELATED RIGHTS
SECTION 2.1. Piggyback Registration............................................................... 3
SECTION 2.2. Demand Registration.................................................................. 4
SECTION 2.3. Registration on Form S-3............................................................. 5
SECTION 2.4. Registration Procedures.............................................................. 6
SECTION 2.5. Registration Expenses................................................................ 9
SECTION 2.6. Participation in Registration........................................................ 9
SECTION 2.7. Delay of Registration................................................................ 9
SECTION 2.8. Specific Performance................................................................. 9
ARTICLE III
INDEMNIFICATION AND CONTRIBUTION
SECTION 3.1. Indemnification by the Company....................................................... 9
SECTION 3.2. Indemnification by Holders of Registrable Securities................................. 10
SECTION 3.3. Conduct of Indemnification Proceedings............................................... 11
SECTION 3.4. Contribution......................................................................... 11
SECTION 3.5. Current Public Information........................................................... 12
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Inspection Rights.................................................................... 13
SECTION 4.2. Notices.............................................................................. 13
SECTION 4.3. Additional Parties................................................................... 13
SECTION 4.4. Amendments and Waivers............................................................... 13
SECTION 4.5. Successors and Assigns............................................................... 14
SECTION 4.6. Captions............................................................................. 14
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SECTION 4.7. Counterparts; Effectiveness.......................................................... 14
SECTION 4.8. GOVERNING LAW........................................................................ 14
SECTION 4.9. Severability......................................................................... 14
SECTION 4.10. Entire Agreement..................................................................... 14
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 3, 2001 (the
"Agreement"), by and among XXXXXXX FASTENERS INC., a Delaware corporation (the
"Company"), the parties identified as "Existing Investors" on the signature
pages hereof, the parties identified as "New Investors" on the signature pages
hereof and any parties identified on the signature pages of any joinder
agreements executed and delivered pursuant to Section 4.3 of this Agreement.
WHEREAS, pursuant to the Merger Agreement dated as of the date
hereof by and between Xxxxxxx Holdings Inc. ("Holdings") and the Company, the
Existing Investors are being issued shares of Common Stock in exchange for
cancellation of their shares of common stock Holdings;
WHEREAS, pursuant to the Exchange Agreement dated as of the
date hereof among Holdings, the Company, Saratoga Partners III, L.P., Saratoga
Partners III, C.V., Saratoga Management Company, LLC and the noteholders listed
on Exhibit A thereto, the New Investors are being issued shares of Common Stock
and Bonds in exchange for cancellation of their 11 1/4% Senior Notes of the
Company due 2007;
WHEREAS, the Company and the Investors desire to provide for
certain matters relating to the rights of the Investors;
IN CONSIDERATION of the foregoing and of their mutual
covenants set forth in this Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein,
have the following meanings:
"Affiliate" means, as to any Person, any other Person directly
or indirectly Controlling, Controlled by or under common Control with such
Person.
"Board" means the Board of Directors of the Company.
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"Bonds" means the 14% Subordinated Pay-in-Kind Bonds due 2013
of the Company (which term shall include any pay-in-kind bonds issued or
issuable pursuant thereto).
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"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 securities, partnership interests or by
contract, assignment or otherwise. The terms "Controlling" and "Controlled"
shall have meanings correlative to the foregoing.
"Greenwich" means, collectively, GSC Recovery II, L.P., GSC
Recovery (US) L.L.C., Unione Italiana (U.K.) Reinsurance Company, Limited and
Greenwich Street Capital Partners II, L.P. or any of its Affiliates.
"Investors" means the Existing Investors, the New Investors
and (i) with respect to Common Stock, any permitted transferees (in accordance
with the terms of the Stockholders Agreement dated as of the date hereof by and
among the parties hereto and any parties to any joinder agreements thereto) of
such Persons who are party (including by joinder) to this Agreement and (ii)
with respect to the Bonds, any transferee of Bonds of any Investor or New
Investor that becomes a party (including by joinder) to this Agreement.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as
amended.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Registrable Securities" means any shares of Common Stock,
including shares of Common Stock issuable upon exercise of the Warrants, and any
Bonds, now owned or hereafter acquired by the Investors, except that a security
will cease to be a Registrable Security when it (i) has been effectively
registered under the 1933 Act and disposed of in accordance with the
registration statement covering it or (ii) has been sold publicly pursuant to
Rule 144 (or any similar provision then in force) under the 1933 Act.
"Transfer" means any direct or indirect transfer, sale,
conveyance, pledge, hypothecation or other disposition.
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"Warrants" means the warrants issued by the Company to the
Existing Investors entitling the holders thereof to purchase shares of Common
Stock pursuant to warrant agreements dated as of August 3, 2001.
ARTICLE II
REGISTRATION AND RELATED RIGHTS
SECTION 2.1. Piggyback Registration.
(a) Right to Piggyback. If at any time the Company proposes to
register any of its Common Stock under the 1933 Act in connection with the
offering of such Common Stock (except pursuant to a registration statement filed
on Form S-4 or on Form S-8 or such other forms as shall be prescribed under the
1933 Act for the same purposes or for any exchange offer) (a "Piggyback
Registration"), the Company shall at such time provide promptly to all Investors
with written notice of its intention so to do. Upon the written request of any
Investor given within 20 days after the providing of any such notice by the
Company, the Company shall use reasonable best efforts to cause to be registered
under the 1933 Act all of the Registrable Securities held by such Investor that
have been so requested to be registered, subject to the provisions of subsection
2.1(c).
(b) Selection of Underwriters. If the Company in its sole
discretion decides a Piggyback Registration shall be underwritten, the Company
shall have sole discretion in the selection of any underwriter or underwriters
to manage such Piggyback Registration.
(c) Priority on Piggyback Registrations. If the managing
underwriter or underwriters of a Piggyback Registration advise the Company in
writing that in its or their opinion the number of Registrable Securities
proposed to be sold in such Piggyback Registration exceeds the number which can
be sold, or adversely affects the price at which the securities are to be sold
in such offering, the Company will include in such registration only the number
of Registrable Securities, which, in the opinion of such underwriter or
underwriters, can be sold in such offering and which will not adversely affect
the price thereof. In the event that the contemplated distribution does not
involve an underwritten offering, the determination that the inclusion of such
Registrable Securities shall adversely affect the price or the number of
securities which may be sold by the Company in such offering shall be made by
the Company in its reasonable discretion. The Registrable Securities so included
in such Piggyback Registration shall be apportioned (i) first, to any shares of
Common Stock that the Company proposes to sell and (ii) second, pro rata among
any shares of Common Stock that any Investors propose to sell, according to the
total amount of Common Stock requested for
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inclusion by said Investors, or in such other proportions as shall mutually be
agreed to among such Investors.
SECTION 2.2. Demand Registration.
(a) Right to Demand. Greenwich may at any time make a written
request to the Company for registration (a "Demand Registration"), under and in
accordance with the 1933 Act, of all or part of its Registrable Securities, upon
receipt of which the Company shall promptly cause to be prepared and filed a
registration statement under the 1933 Act covering the Registrable Securities
requested to be registered pursuant to this Section. Within 20 days after
receipt of such request, the Company will serve written notice of such
registration request to all Investors who are holders of Registrable Securities
of the same kind of Registrable Securities to which such Demand Registration
relates and the Company will include in such registration all Registrable
Securities of such Investors with respect to which the Company has received
written requests for inclusion therein within 20 business days after receipt of
such written notice. All requests made pursuant to this subsection will specify
the number of Registrable Securities to be registered and will also specify the
intended methods of disposition thereof; provided, however, that (x) the Company
need not effect any Demand Registration unless the Registrable Securities
requested to be registered pursuant to such Demand Registration shall constitute
at least 10% of the outstanding Common Stock or 10% of the aggregate principal
amount of the outstanding Bonds, as the case may be; and (y) the Company may, if
the Board so determines in the exercise of its reasonable judgment, that due to
a pending or contemplated acquisition or disposition it would be inadvisable to
effect such Demand Registration at such time, defer such Demand Registration for
a single period not to exceed 90 days; provided that the Company may not
exercise this right more than once in any twelve-month period.
(b) Number of Demand Registrations. Greenwich shall be
entitled to five Demand Registrations with respect to the Common Stock held by
it and five Demand Registrations with respect to the Bonds held by it, and the
expenses of such registrations will be borne by the Company. A Demand
Registration shall not be counted as a Demand Registration hereunder until the
registration statement relating to such Demand Registration has been declared
effective and maintained for a period of at least six months, or such shorter
period if all Registrable Securities included therein have been sold.
(c) Selection of Underwriters. If any Demand Registration is
in the form of an underwritten offering, Greenwich shall have sole discretion in
the selection of any underwriter or underwriters to manage such Demand
Registration.
(d) Priority on Demand Registrations. If the managing
underwriter or underwriters of a Demand Registration advise the Company in
writing that in its or their opinion
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the number of Registrable Securities proposed to be sold in such Demand
Registration exceeds the number which can be sold, or adversely affects the
price at which the securities are to be sold, in such offering, the Company will
include in such registration only the number of Registrable Securities which, in
the opinion of such underwriter or underwriters, can be sold in such offering
and which will not adversely affect the price thereof. In the event that the
contemplated distribution does not involve an underwritten offering, the
determination that the inclusion of such Registrable Securities shall adversely
affect the price or the number of securities which may be sold in such offering
shall be made by the Company in its reasonable discretion. The Registrable
Securities so included in such Demand Registration shall be apportioned pro
rata, among any shares of Common Stock and/or Bonds, as the case may be, that
any Investors propose to sell, according to the total amount of Common Stock
and/or Bonds, as the case may be, requested for inclusion by said Investors, or
in such other proportions as shall mutually be agreed to among such Investors.
Except for registration statements on Form S-4 or S-8 or such other forms as
shall be prescribed under the 1933 Act for the same purposes or for any exchange
offer, the Company will not file with the Commission any other registration
statement under the 1933 Act with respect to its securities, whether for its own
account or that of other Investors, from the date of receipt of a notice from
Greenwich pursuant to Section 2.2(a) until the completion of the period of
distribution of the registration statement contemplated thereby.
SECTION 2.3. Registration on Form S-3. (a) Greenwich may at
any time make a written request to the Company for a registration (an "S-3
Registration"), under and in accordance with the 1933 Act, for all or part of
its Registrable Securities, upon receipt of which the Company shall promptly
cause to be prepared and filed a shelf registration statement on Form S-3 under
the Securities Act covering the Registrable Securities requested to be
registered pursuant to this Section. Within 20 days after receipt of such
request, the Company will serve written notice of such registration request to
all Investors who are holders of Registrable Securities of the same kind of
Registrable Securities being requested pursuant to the S-3 Registration, and the
Company will include in such registration all such Registrable Securities of
such Investors with respect to which the Company has received written requests
for inclusion therein within 20 business days after receipt of such written
notice. All requests made pursuant to this subsection will specify the number of
Registrable Securities to be registered and will also specify the intended
methods of disposition thereof; provided, however, that (x) the Company need not
effect any S-3 Registration unless (i) Form S-3 (or any successor form that
permits the incorporation by reference of future filings by the Company under
the 0000 Xxx) is available for such offering and (ii) the Registrable Securities
requested to be registered pursuant to such S-3 Registration shall constitute at
least 10% of the outstanding Common Stock, or 10% of the outstanding Bonds, as
the case may be; and (y) the Company may, if the Board so determines in the
exercise of its reasonable judgment, that due to a pending or contemplated
acquisition or disposition it would be inadvisable to effect such S-3
Registration at such time, defer such X-0
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Xxxxxxxxxxxx for a single period not to exceed 90 days; provided that the
Company may not exercise this right more than once in any twelve-month period.
Registrations effected pursuant to this Section 2.3 shall not be counted as
Demand Registrations pursuant to Section 2.2.
(b) Number of S-3 Registrations. Greenwich shall be entitled
to an unlimited number of S-3 Registrations and the expenses of such
registrations will be borne by the Company.
(c) Selection of Underwriters. If any S-3 Registration is in
the form of an underwritten offering, Greenwich shall have sole discretion in
the selection of any underwriter or underwriters to manage such S-3
Registration.
(d) Priority on S-3 Registrations. If the managing underwriter
or underwriters of an S-3 Registration advise the Company in writing that in its
or their opinion the number of Registrable Securities proposed to be sold in
such S-3 Registration exceeds the number which can be sold, or adversely affects
the price at which the securities are to be sold, in such offering, the Company
will include in such registration only the number of Registrable Securities
which, in the opinion of such underwriter or underwriters, can be sold in such
offering and which will not adversely affect the price thereof. In the event
that the contemplated distribution does not involve an underwritten offering,
the determination that the inclusion of such Registrable Securities shall
adversely affect the price or the number of securities which may be sold in such
offering shall be made by the Company in its reasonable discretion. The
Registrable Securities so included in such S-3 Registration shall be apportioned
pro rata, among any shares of Common Stock and/or Bonds that any Investors
propose to sell, according to the total amount of Common Stock and/or Bonds
requested for inclusion by said Investors, or in such other proportions as shall
mutually be agreed to among such Investors.
SECTION 2.4. Registration Procedures. It shall be a condition
precedent to the obligations of the Company and any underwriter or underwriters
to take any action pursuant to this Article II that the Investors requesting
inclusion in any Piggyback Registration, Demand Registration or S-3 Registration
(each, a "Registration," and collectively, the "Registrations") shall furnish to
the Company such information regarding them, the Registrable Securities held by
them, the intended method of disposition of such Registrable Securities, and
such agreements regarding indemnification, disposition of such securities and
the other matters referred to in this Article II as the Company shall reasonably
request and as shall be required in connection with the action to be taken by
the Company. With respect to any Registration which includes Registrable
Securities held by an Investor, the Company shall, subject to the provisions of
Section 2.4, as expeditiously as practicable:
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(a) prepare and file with the Commission a registration
statement on the appropriate form prescribed by the Commission and use
its reasonable best efforts to cause such registration statement to
become effective;
(b) prepare and file with the Commission such amendments,
post-effective amendments and supplements, to such registration
statement and any documents required to be incorporated by reference
therein as may be necessary to keep the registration statement
effective until the distribution of Registrable Securities shall have
been completed or until the expiration of 180 days (or such longer
period as the Company may agree on) after the effective date, whichever
is earlier; cause the prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the 1933 Act (or any successor rule); and comply with
the provisions of the 1933 Act applicable to it with respect to the
disposition of all Registrable Securities covered by such registration
statement during the applicable period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
registration statement or supplement to the prospectus;
(c) furnish to such Investor at least one conformed copy of
the registration statement and any post-effective amendment thereto,
upon request, and such number of copies of the prospectus (including
each preliminary prospectus and any amendments or supplements thereto),
and any exhibits or documents incorporated by reference therein and
such other documents as such as the Investor or underwriter or
underwriters, if any, may reasonably request in order to facilitate the
disposition of the securities being sold by the Investor;
(d) on or prior to the date on which the registration
statement is declared effective, use its reasonable best efforts to
register or qualify, and cooperate with such Investor, the underwriter
or underwriters, if any, and their counsel in connection with the
registration or qualification of the Registrable Securities covered by
the registration statement for offer and sale under the securities or
blue sky laws of each state and other jurisdiction of the United States
as such Investor or managing underwriter or underwriters, if any, may
reasonably request (considering the nature or size of the offering and
the expense and time involved in such qualification or registration),
and to do any and all other reasonable acts or things which may be
necessary or advisable to enable the disposition in all such
jurisdictions of the Registrable Securities covered by the applicable
registration statement; provided, however, that the Company shall 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;
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(e) use its reasonable best efforts to cause the Registrable
Securities covered by the registration statement to be registered with
or approved by such other governmental agencies or authorities within
the United States, including, without limitation, the National
Association of Securities Dealers, Inc. (the "NASD"), as may be
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(f) use its reasonable best efforts to cause the Registrable
Securities that are comprised of Common Stock covered by the
registration statement to be listed on any national securities exchange
on which any Common Stock is listed;
(g) give the Investors who hold Registrable Securities
registered under such registration statement, the underwriters, if any,
and their respective counsel and accountants, the timely opportunity to
participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and give each of them such
access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be
reasonably necessary or advisable, in the opinion of each of such
Investors and such underwriters' respective counsel, to conduct
appropriate due diligence as contemplated by the 1933 Act; and
(h) provide to the Investors and underwriters with legal
opinions and "cold comfort" letters in customary form and substance.
The Investors, upon receipt of any notice from the Company
that the prospectus prepared pursuant to subsection (b) above contains an untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein not misleading, will forthwith discontinue disposition of
the Registrable Securities until the Investors receive copies of a supplemented
or amended prospectus or until they are advised in writing (the "Advice") by the
Company that the use of the prospectus may be resumed, and have received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus, and, if so directed by the Company, each Investor shall, or
shall request the managing underwriter or underwriters, if any, to, deliver to
the Company all copies, other than permanent file copies then in such Investor's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice. In the event the Company shall give any such
notice, the time periods mentioned in subsection (b) of this Section 2.4 shall
be extended by the number of days during the period from and including any date
of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
the immediately preceding sentence or the Advice.
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SECTION 2.5. Registration Expenses. Except where this
Agreement specifies otherwise, in the case of any Registration, the Company
shall bear all expenses in connection with its obligations in connection
therewith, including, without limitation, the expenses of preparing any
registration statement; commission and state "blue sky" filing, registration and
qualification fees and expenses (including, without limitation, fees and
expenses of counsel in connection with blue sky surveys); fees and expenses
associated with filings required to be made with the NASD; fees and expenses of
counsel for the Company, one firm of counsel for all selling stockholders and
independent public accountants (including, without limitation, the cost of
providing any legal opinions or "cold comfort" letters); and all printing costs
and expenses; provided, however, that the Company shall not be responsible for
the underwriting discounts and commissions or placement fees of underwriters
directly attributable to the Registrable Securities included in such
Registration.
SECTION 2.6. Participation in Registration. No Investor may
participate in any registration hereunder unless such Investor (a) agrees to
sell its securities on the basis provided in any underwriting arrangements
approved by the Company and (b) completes and executes all questionnaires,
powers of attorney, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements. Nothing in this
Section 2.6 shall be construed to create any additional rights regarding the
registration of Registrable Securities in any Person otherwise than as set forth
in this Article II.
SECTION 2.7. Delay of Registration. No Investor shall have any
right to take any action to restrain, enjoin, or otherwise delay any
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
SECTION 2.8. Specific Performance. The parties agree that the
recovery of damages would not be an adequate remedy for the breach of the
covenants of the Company contained in this Article II and, accordingly, agree
that the Investors shall be entitled to specific performance of the obligations
contained herein.
ARTICLE III
INDEMNIFICATION AND CONTRIBUTION
SECTION 3.1. Indemnification by the Company. In connection
with any registration statement filed to effect a Registration pursuant to this
Agreement, the Company agrees to indemnify and hold harmless, to the fullest
extent permitted by law, each holder of Registrable Securities registered
pursuant to a Registration hereunder, its officers, directors and partners, each
underwriter of such Registrable Securities and each Person who controls
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(within the meaning of the 0000 Xxx) such holder or underwriter against all
losses, claims, damages, liabilities and expenses (as incurred or suffered and
including, but not limited to, any and all expenses incurred in investigating,
preparing or defending any litigation or proceeding, whether commenced or
threatened, or any claim whatsoever) ("Losses") which arise out of or are based
upon any untrue or alleged untrue statement of a material fact contained in the
registration statement or any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or by any untrue or alleged untrue statement of a material fact
included in any prospectus forming a part of such registration statement or
preliminary prospectus or final prospectus, or any amendment or supplement
thereof or any omission or alleged omission to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as the same are caused by
or contained in any information furnished in writing to the Company by such
holder or underwriter or its representative with respect to such Person
expressly for use therein.
SECTION 3.2. Indemnification by Holders of Registrable
Securities. In connection with any registration statement filed pursuant to this
Agreement to effect a Registration, each holder participating in such
Registration agrees, severally and not jointly, to (and, as a condition
precedent to the filing of such registration statement, the Company may require
an undertaking satisfactory to it from each such participating holder and from
any prospective underwriter therefor agreeing to) indemnify, to the fullest
extent permitted by law, the Company and its officers, directors and agents and
each Person who controls (within the meaning of the 0000 Xxx) the Company or
such officers, directors or agents against any Losses which arise out of or are
based upon any untrue or alleged untrue statement of a material fact contained
in such registration statement or any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or by any untrue or alleged untrue statement of a
material fact included in any prospectus forming a part of such registration
statement or preliminary prospectus or final prospectus, or any amendment or
supplement thereof or any omission or alleged omission to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
or affidavit with respect to such holder so furnished in writing by such holder
or its representatives to the Company specifically for inclusion in such
registration statement or prospectus; provided, however, that no such holder
shall be responsible for Losses in excess of the net proceeds to be received by
such holder from the sale of Registrable Securities covered by such registration
statement. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer-managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information with respect to such Persons so furnished in
writing by such Persons specifically for inclusion in any prospectus or
Registration.
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SECTION 3.3. Conduct of Indemnification Proceedings. Each
Person entitled to indemnification hereunder will (i) give prompt written notice
to the indemnifying party of any claim with respect to which it seeks
indemnification or contribution pursuant to this Agreement and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any Person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (x) the
indemnifying party has agreed in writing to pay such fees and expenses, (y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such Person or (z) in the reasonable
judgment of any such Person, based upon advice of its counsel, a conflict of
interest may exist between such Person and the indemnifying party with respect
to such claims (in which case, if the indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such Person); provided,
further, that an indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim on behalf of all indemnified parties shall not be
obligated to pay the fees and expenses of more than one counsel (in addition to
local counsel) for all indemnified parties. If the indemnifying party assumes
the defense, or is not pursuant to clause (z) above entitled to assume the
defense, it shall not be subject to any liability for any settlement or
compromise made by the indemnified party without its consent (but such consent
shall not be unreasonably withheld). No indemnifying party will be permitted to,
and no indemnified party will be required to, consent to entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to the indemnified party of a
release from all liability in respect to such claim or litigation. In addition,
without the consent of the indemnified party (which consent will not be
unreasonably withheld), no indemnifying party will be permitted to consent to
entry of any judgment or enter into any settlement which provides for any action
on the part of the indemnified party other than the payment of money damages
which are to be paid in full by the indemnifying party. Likewise, no indemnified
party may enter into any settlement without the consent of the indemnifying
party (which consent may not be unreasonably withheld). If requested by the
indemnifying party, the indemnified party agrees to cooperate with the
indemnifying party and its counsel in contesting any claim which the
indemnifying party elects to contest.
SECTION 3.4. Contribution. If the indemnification provided for
in this Article III from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any Losses, then the indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Losses in such proportion
as is appropriate to reflect the relative benefits received by the indemnifying
party, on the one hand, and such indemnified party, on the other hand, or, if
such
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allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect the relative benefits received by and fault of the
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the actions which resulted in such Losses, as well as
any other relevant equitable considerations. The relative benefit shall be
determined by reference to, among other things, the amount of net proceeds
received by each party from the offering to which such contribution relates. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the Losses referred to above shall be deemed to include, without
limitation, any legal or other fees, costs or expenses reasonably incurred by
such party in connection with any investigation or proceeding. Notwithstanding
anything to the contrary in the foregoing, no holder shall be responsible for
Losses in excess of the net proceeds to be received by such holder from the sale
of Registrable Securities covered by such registration statement.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 3.4 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The obligations
of the holders of Registrable Securities to contribute in this Section 3.4 are
several in proportion to the net proceeds received from the sale of Registrable
Securities by each such holder and not joint.
SECTION 3.5. Current Public Information. With a view to making
available the benefits of certain rules and regulations of the Commission which
may permit the sale of Registrable Securities to the public without
registration, the Company agrees to use its best efforts to: (a) file with the
Commission in a timely manner all reports and other documents required of the
Company under the 1934 Act after the Company has become subject to the
requirements of the 1934 Act; and (b) furnish to any holder of Registrable
Securities, during the term of this Agreement and after the Company has been
subject to the requirements of the 1934 Act for at least 90 days, forthwith upon
request, (i) a written statement by the Company that it has complied with the
current public information and reporting requirements of Rule 144 under the 1933
Act and the 1934 Act to which it is subject and (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company (it being understood that, as of the date hereof, the
Company is deemed not to be subject to the reporting requirements of the 1934
Act).
16
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ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Inspection Rights. The Company shall permit any
authorized representatives designated by any Investor holding at least 2.5% of
the Common Stock, or 2.5% of the Bonds, to visit and inspect any of the
properties of the Company and its subsidiaries, including its and their
financial and accounting records, and to discuss its and their affairs, finances
and accounts with its and their officers and independent public accountants, all
upon reasonable notice and at reasonable times during normal business hours.
Each Investor agrees that it shall treat as confidential all non-public
information that such Investor obtains pursuant to the foregoing.
SECTION 4.2. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party at its address or facsimile
number set forth on the signature pages hereof or the signature page of any
joinder agreement executed and delivered pursuant to Section 4.3 of this
Agreement or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the party sending the communication. Each
such notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section and receipt is confirmed, (ii) if given by mail, 72 hours after
such communication is deposited in the mail registered or certified, return
receipt requested, with postage prepaid, addressed as aforesaid, or (iii) if
given by any other means, when delivered at the address specified in this
Section.
SECTION 4.3. Additional Parties. Only Persons (other than the
initial signatories hereto) that execute a joinder agreement in the form of
Exhibit A shall be deemed to be Investors. Except to the extent limited in any
joinder agreement, each Person that so becomes an Investor after the date hereof
shall be entitled to all rights and privileges of an Investor as if such
Investor had been an original signatory to this Agreement.
SECTION 4.4. Amendments and Waivers. Any provision of this
Agreement may be amended if, but only if, such amendment is in writing and is
signed by the Company and each of (i) holders of at least 75% of the outstanding
shares of Common Stock, (ii) holders of at least 75% of the aggregate principal
amount of Bonds outstanding, (iii) Saratoga and (iv) Cerberus. Any provision of
this Agreement may be waived if, but only if, such waiver is in writing and is
signed by the Company and each of (i) holders of at least 75% of the outstanding
shares of Common Stock, (ii) holders of at least 75% of the aggregate principal
amount of Bonds outstanding, (iii) Saratoga and (iv) Cerberus.
17
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SECTION 4.5. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided, however, that no
assignment of rights under this Agreement will be valid unless made in
connection with a contemporaneous Transfer of Common Stock or Bonds which is not
prohibited by this Agreement; and provided, further, that upon any such
assignment, the assignee shall comply with Section 4.3 hereof. The Company may
not assign or otherwise transfer any of its rights under this Agreement.
SECTION 4.6. Captions. The captions of this Agreement are
included for convenience of reference only, do not constitute a part hereof and
shall be disregarded in the construction hereof.
SECTION 4.7. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect an if the signatures thereto and hereto were upon the same
instrument. This Agreement shall be effective when this Agreement has been
executed by the Company and each Investor, and the executed signature page of
each such Person has been delivered to each other such Person.
SECTION 4.8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 4.9. Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement, or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction.
SECTION 4.10. Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement, and is intended to be a
complete and exclusive agreement and understanding of the parties hereto in
respect of the subject matter contained herein.
18
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXX FASTENERS INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
Xxxxxxx Fasteners Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
19
S-2
EXISTING INVESTORS:
SARATOGA PARTNERS III, L.P.
By: Saratoga Management Company LLC, its
Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Principal
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SARATOGA PARTNERS III, C.V.
By: Saratoga Management Company LLC, its
Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Principal
c/o Curacao International Trust
Company, X.X.
Xx Xxxxxxxxxx 00
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx Antilles
Attention: J.F.M. Horsten
Telephone: 000-000-0-000-0000
Telecopier: 011-599-9-732-2500
20
S-3
XXXXX GLOBAL INVESTMENTS, LTD.
By: Xxxxx Capital Management Inc., its
Trading Manager
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director of Operations
c/o Moore Capital Management Inc.
1251 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
REMINGTON INVESTMENT STRATEGIES, L.P.
By: Xxxxx Capital Advisors, L.L.C., its
General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director of Operations
c/x Xxxxx Capital Management Inc.
1251 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
21
S-4
WLD PARTNERS, LTD.
By: WLD Partners GP, Inc., its
General Partner
By: /s/ F. Xxxxxx Xxxxxx
-------------------------------------
Name: F. Xxxxxx Xxxxxx
Title: Vice President
Las Olas Centre
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: F. Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
XXXXX UNIVERSITY THIRD CENTURY FUND
By: Saratoga Partners III, L.P., its
Attorney-in-Fact
By: Saratoga Management Company,
LLC, its Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Principal
c/o Saratoga Partners III, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
22
S-5
CO-INVESTMENT PARTNERS, L.P.
By: CIP Partners, LLC, its General
Partner
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Member
000 Xxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
NEW INVESTORS:
GSC RECOVERY II, L.P.
By: GSC RECOVERY GP, L.P., its General
Partner
By: GSCP (N.J.), L.P., its General
Partner
By: GSCP (N.J.), Inc., its General
Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
23
S-6
GSCP RECOVERY (US) L.L.C.
By: GREENWICH STREET CAPITAL
PARTNERS II, L.P., its General
Partner
By: GREENWICH STREET
INVESTMENTS II, L.L.C., its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
UNIONE ITALIANA (U.K.) REINSURANCE
COMPANY, LIMITED
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
GREENWICH STREET CAPITAL
PARTNERS II, L.P.
By: GREENWICH STREET
INVESTMENTS II, L.L.C., its General
Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
c/o GSC Partners
000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
24
S-7
CERBERUS INTERNATIONAL, LTD.
By: Xxxxxxxxx Hill Overseas Management,
LLC, its Investment Manager
By: /s/ Xxxx X. Neporent
------------------------------
Name: Xxxx X. Neporent
Title: Vice President
Cerberus International, Ltd.
c/o Partridge Hill Overseas
Management, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SF FUNDING COMPANY LLC
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Principal
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
25
S-8
SARATOGA MANAGEMENT COMPANY LLC
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Principal
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
26
EXHIBIT A
JOINDER AGREEMENT
THIS JOINDER AGREEMENT is made and entered into by the
undersigned with reference to the following facts:
I am acquiring simultaneously with the execution of this
Joinder Agreement [[ ] shares of the Common Stock (the "Shares")] [and]
[$[ ] aggregate principal amount of 14% subordinated pay-in-kind
notes due 2013 (the "Bonds")] [and] [[ ] warrants to purchase Shares
(the "Warrants")] of XXXXXXX FASTENERS INC., a Delaware corporation
(the "Company"); and
A. As a condition to the acquisition of [the Shares] [and]
[the Bonds] [and] [the Warrants] I have agreed to join in a
registration rights agreement dated as of August 3, 2001, as amended
from time to time (the "Registration Rights Agreement"), a copy of
which has been furnished to me, among the Company and the Investors
party thereto.
I therefore agree to join in the Registration Rights Agreement
and agree to be bound by all of the terms and provisions thereof as though I
were an original party thereto and were included in the definition of Investor,
as used therein.
IN WITNESS WHEREOF, the undersigned has executed this
agreement this day of , .
Name:
------------------------------------
Address for Notices:
