REGISTRATION RIGHTS AGREEMENT
dated May 11, 1998
among
LPA HOLDING CORP.
and the
OTHER PARTIES LISTED HEREIN
REGISTRATION RIGHTS
AGREEMENT dated as of May 11, 1998 among
LPA HOLDING CORP., a Delaware corporation
(the "Company"), VESTAR/LPT LIMITED PARTNERSHIP,
a Delaware limited partnership ("Vestar"),
the stockholders of the Company listed
on Schedule I (the "Management Stockholders")
and LPA INVESTMENT LLC, a Delaware limited
liability company (the "Investor").
Each Stockholder currently owns (or has the right to acquire)
the number of shares of Common Stock of the Company set forth opposite the name
of such Stockholder on Schedule I. The parties hereto deem it to be in their
best interests to set forth their rights and obligations in connection with
public offerings and sales of shares of Common Stock. Accordingly, the parties
agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"Commission" means the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act.
"Common Stock" means the Class A Common Stock, par value $.01
per share, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, and
the rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect from time to time.
"Initial Public Offering" means the first underwritten public
offering of Common Stock for sale to the public for the account of the Company
and offered on a "firm commitment" or "best efforts" basis pursuant to an
offering registered under the Securities Act with the Commission on Form S-1 or
its then equivalent.
"Investor" means LPA Investment and each person or entity that
acquires shares of Common Stock directly or indirectly from LPA Investment.
"Other Shares" means at any time those shares of Common Stock
which do not constitute Primary Shares or Registrable Shares.
"Primary Shares" means at any time the authorized but unissued
shares of Common Stock or shares of Common Stock held by the Company in its
treasury.
"Registrable Shares" means at any time, with respect to any
Stockholder, the Restricted Shares held by such Stockholder which constitute
Common Stock.
"Requisite Stockholders" means at any time, the Stockholders
holding not less than 50% (by number of shares) of the then outstanding
Registrable Shares on a fully diluted basis.
"Restricted Shares" means at any time, with respect to any
Stockholder, the shares of Common Stock, any other securities which by their
terms are exercisable or exchangeable for or convertible into Common Stock or
other securities which are so exercisable or convertible and any securities
received in respect thereof, which are held by such Stockholder and which have
not previously been sold to the public pursuant to a registration statement
under the Securities Act or pursuant to Rule 144 or which are not (or would not
be, upon any such exercise, exchange or conversion) eligible for sale by the
holder thereof under Rule 144(k) or any successor rule thereto or any
complementary rule thereto.
"Rule 144" means Rule 144 promulgated under the Securities Act
or any successor rule thereto or any complementary rule thereto.
"Securities Act" means the Securities Act of 1933, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
"Stockholders" means Vestar, the Management Stockholders, the
Investor and any person or entity that acquires Restricted Shares directly or
indirectly from any Stockholder in accordance with Section 14.
"Stockholders Agreement" means the Stockholders Agreement
dated the date hereof, among the Company and the Stockholders as the same may be
amended or modified.
"Transfer" means any disposition of any Restricted Shares or
of any interest therein which constitutes a sale within the meaning of the
Securities Act, other than any disposition pursuant to an effective registration
statement under the Securities Act and complying with all applicable state
securities and "blue sky" laws.
"Vestar" means Vestar/LPT Limited Partnership, a Delaware
limited partnership.
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SECTION 2. Demand Registration.
(a) If the Company shall be requested by the Requisite
Stockholders to effect a registration under the Securities Act of
Registrable Shares in accordance with this Section, then the Company
shall promptly give written notice of such proposed registration to all
holders of Restricted Shares and shall offer to include in such
proposed registration any Registrable Shares requested to be included
in such proposed registration by such holders who respond in writing to
the Company's notice within 15 days after delivery of such notice
(which response shall specify the number of Registrable Shares proposed
to be included in such registration). The Company shall promptly use
its best efforts to effect such registration on an appropriate form,
including Form S-2 or S-3, if available, under the Securities Act of
the Registrable Shares which the Company has been so requested to
register; provided, however, that the Company shall not be obligated to
effect any registration under the Securities Act except in accordance
with the following provisions:
(i) the Company shall not be obligated to (A) file more
than five registration statements in total pursuant to this Section
(in addition to any registration statements filed pursuant to
Section 3) or (B) file more than one registration statement
pursuant to this Section within any consecutive 180-day period,
which registration statement(s) were initiated pursuant to this
Section and become effective or which are rescinded by the
Requisite Stockholders without reimbursement as specified in the
last paragraph of this Section;
(ii) the Company shall not be obligated to file any
registration statement during any period in which any other
registration statement (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms
thereto) pursuant to which Primary Shares are to be or were sold
has been filed and not withdrawn or has been declared effective
within the prior 90 days;
(iii) with respect to any registration pursuant to this
Section, the Company may include in such registration any Primary
Shares or Other Shares; provided, however, that if the managing
underwriter advises the Company that the inclusion of all
Registrable Shares, Primary Shares and Other Shares proposed to be
included in such registration would interfere with the successful
marketing (including pricing) of all such securities, then the
number of Registrable Shares, Primary Shares and Other Shares
proposed to be included in such registration shall be included in
the following order:
(A) first, the Primary Shares;
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(B) Second, the Registrable Shares held by all
Stockholders, pro rata based upon the number of Restricted
Shares (based upon Common Stock Equivalents) owned by each
such Stockholder at the time of such registration; and
(C) Third, the Other Shares.
(b) A requested registration under this Section may be
rescinded by written notice to the Company by the Requisite
Stockholders; such rescinded registration shall not count as a
registration statement initiated pursuant to this Section for purposes
of paragraph (a) above if such registration statement is rescinded
prior to the effective date thereof and if the Requisite Stockholders
shall have reimbursed the Company for all out-of-pocket expenses
incurred by the Company in connection with such rescinded registration.
A registration shall not count as a registration statement initiated
pursuant to this Section for purposes of paragraph (a) above unless it
becomes effective and the Requisite Stockholders are able to sell at
least 80% of the Registrable Shares sought to be included in such
registration statement.
SECTION 3. Registrations on Form S-3.
Anything contained in Section 2 to the contrary
notwithstanding, at such time as the Company shall have qualified for the use of
Form S-3 or any successor form promulgated under the Securities Act, if the
Company shall be requested by the Investor to effect a registration under the
Securities Act of Registrable Shares in accordance with this Section, then the
Company shall promptly give written notice of such proposed registration to all
holders of Restricted Shares and shall offer to include in such proposed
registration any Registrable Shares requested to be included in such proposed
registration by such holders who respond in writing to the Company's notice
within 30 days after delivery of such notice (which response shall specify the
number of Registrable Shares proposed to be included in such registration). The
Company shall promptly use its best efforts to effect such registration on Form
S-3 of the Registrable Shares which the Company has been so requested to
register; provided, however, that the Company shall not be obligated to file any
registration statement pursuant to this Section if the Company shall reasonably
conclude that the anticipated gross offering price of all Registrable Shares to
be included therein would be less than $5,000,000.
SECTION 4. Shelf Registration
On any date after the expiration of the holdback period set
forth in Section 7(a) hereof, if the Company shall be requested by Vestar to
file a shelf registration statement for an offering to be made on a continuous
basis pursuant to Rule 415
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promulgated under the Securities Act covering the Registrable Shares held by
Vestar, then:
(a) the Company shall, as expeditiously as practicable, file
with the Commission a shelf registration statement permitting
registration of the Registrable Shares held by Vestar for resale by
Vestar in the manner or manners designated by it (including, without
limitation, one underwritten offering).
(b) The Company shall use its best efforts to keep such shelf
registration statement continuously effective under the Securities Act
until the earliest to occur of (i) the date which is six months from
the effective date of such shelf registration statement, (ii) the date
that Vestar qualifies to sell such shares under Section (k) of Rule
144, (iii) the date that Vestar shall own less than 10% of the Common
Stock held by Vestar on the date hereof and (iv) the period ending when
all the Registrable Shares held by Vestar and covered by such shelf
registration statement have been sold in the manner set forth and as
contemplated in the shelf registration statement. The Company shall not
be required to file a shelf registration statement hereunder if, prior
to any request by Vestar, the dates specified in (ii) or (iii) of this
paragraph (b) shall have passed.
(c) The Company shall promptly supplement and amend the shelf
registration statement if required by the rules, regulations or
instructions applicable to the registration form used for such shelf
registration statement, if required by the Securities Act, or if
reasonably requested by Vestar or by any underwriter of the Registrable
Shares registered thereunder.
(d) The Company shall not be obligated to effect more than one
shelf registration pursuant to this Section 4, nor shall it be
obligated to file a shelf registration during any period in which any
other registration statement (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms thereto)
pursuant to which Primary Shares or Registrable Shares are to be or
were sold has been filed and not withdrawn or has been declared
effective within the prior 90 days. The Company may, by notice to
Vestar suspend, from time to time, the effectiveness of the shelf
registration if in the good faith determination of the Company's Board
of Directors such suspension is advisable in light of events occurring
or transactions contemplated by or with respect to the Company;
provided, however, that if a registration is suspended by application
of this provision, the time period during which the shelf registration
statement is required to be kept effective shall be extended for a
period equal to the term of such suspension.
SECTION 5. Piggyback Registration.
If at any time after an Initial Public Offering the Company
proposes for any reason (including a registration
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pursuant to Section 2 hereof) to register Primary Shares or Other Shares under
the Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto or other than in connection with
an exchange offer or offering solely to the Company's stockholders), it shall
promptly give written notice to each Stockholder of its intention to so register
the Primary Shares or Other Shares and, upon the written request, given within
15 days after delivery of any such notice by the Company, of any Stockholder to
include in such registration Registrable Shares held by such Stockholder (which
request shall specify the number of Registrable Shares proposed to be included
in such registration), the Company shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however, that if the managing underwriter advises the Company that the
inclusion of all Registrable Shares or Other Shares proposed to be included in
such registration would interfere with the successful marketing (including
pricing) of the Primary Shares proposed to be registered by the Company, then
the number of Primary Shares, Registrable Shares and Other Shares proposed to be
included in such registration shall be included in the following order:
(a) first, the Primary Shares;
(b) second, the Registrable Shares held by the Stockholders,
pro rata based upon the number of Restricted Shares (based upon Common
Stock Equivalents) owned by each such Stockholder at the time of such
registration; and
(c) third, the Other Shares.
SECTION 6. Expenses.
The Company shall bear the expense of any registrations
effected pursuant to Sections 2, 3, 4 and 5, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
NASD), fees and expenses of complying with securities and blue sky laws,
printing expenses, and fees and expenses of the Company's counsel and
accountants, and the fees and expenses of the Selling Stockholders' Counsel (as
defined below), but excluding any underwriters' or brokers' discounts or
commissions and the fees of any counsel to any Selling Stockholder, other than
the Selling Stockholders' Counsel.
SECTION 7. Holdback Agreement.
(a) If the Company at any time shall register shares of Common
Stock under the Securities Act pursuant to an Initial Public Offering
and the managing underwriter for such registration shall request, the
Stockholders shall not sell, make
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any short sale of, grant any option for the purchase of, or otherwise
dispose of any Restricted Shares (other than those shares of Common
Stock included in such registration) without the prior written consent
of the Company for a period designated by the Company in writing to the
Stockholders, which period shall not begin more than 10 days prior to
the effectiveness of the registration statement pursuant to which such
public offering shall be made and shall not last more than 180 days
after the effective date of such registration statement.
(b) If the Company at any time shall register shares of Common
Stock under the Securities Act (including any registration pursuant to
Sections 2, 3, 4 or 5) for sale to the public after the Initial Public
Offering and the managing underwriter for such registration shall
request, the Stockholders shall not sell, make any short sale of, grant
any option for the purchase of, or otherwise dispose of any Restricted
Shares (other than those shares of Common Stock included in such
registration) without the prior written consent of the Company for a
period designated by the Company in writing to the Stockholders, which
period shall not begin more than 10 days prior to the effectiveness of
the registration statement pursuant to which such public offering shall
be made and shall not last more than 90 days after the effective date
of such registration statement.
SECTION 8. Preparation and Filing.
If and whenever the Company is under an obligation pursuant to
the provisions of this Agreement to use its best efforts to effect the
registration of any Registrable Shares, the Company shall, as expeditiously as
practicable:
(a) with respect to a registration under Section 2, 3 or 5
hereof) use its best efforts to cause a registration statement that
registers such Registrable Shares to become and remain effective for a
period of 180 days or until all of such Registrable Shares have been
disposed of (if earlier) and with respect to a registration under
Section 4, as set forth therein;
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating
to such a registration statement or prospectus, to each holder of
Registrable Shares, to any counsel to any Selling Stockholder and to
one counsel selected by the holders of a majority of such Registrable
Shares (the "Selling Stockholders' Counsel"), copies of all such
documents proposed to be filed (it being understood that such
five-business-day period need not apply to successive drafts of the
same document proposed to be filed so long as such successive drafts
are supplied to such counsel in advance of the proposed filing by a
period of time that is customary and reasonable under the
circumstances);
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(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least the periods set forth in Section 8(a)
or until all of such Registrable Shares have been disposed of (if
earlier) and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of such Registrable Shares;
(d) notify in writing any counsel to any Selling Stockholder
and the Selling Stockholders' Counsel promptly (i) of the receipt by
the Company of any notification with respect to any comments by the
Commission with respect to such registration statement or prospectus or
any amendment or supplement thereto or any request by the Commission
for the amending or supplementing thereof or for additional information
with respect thereto, (ii) of the receipt by the Company of any
notification with respect to the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (iii) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of such Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Shares reasonably requests
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller of Registrable Shares to
consummate the disposition in such jurisdictions of the Registrable
Shares owned by such seller; provided, however, that the Company will
not be required to qualify generally to do business, subject itself to
general taxation or consent to general service of process in any
jurisdiction where it would not otherwise be required so to do but for
this paragraph (e);
(f) furnish to each seller of such Registrable Shares such
number of copies of a summary prospectus or other prospectus, including
a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such seller of Registrable
Shares may reasonably request in order to facilitate the public sale or
other disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the seller or sellers thereof to
consummate the disposition of such Registrable Shares;
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(h) notify on a timely basis each seller of such Registrable
Shares at any time when a prospectus relating to such Registrable
Shares is required to be delivered under the Securities Act within the
appropriate period mentioned in paragraph (a) of this Section, of the
happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing and, at the
request of such seller, prepare 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 offerees of
such shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(i) make available for inspection by any counsel to any
Selling Stockholder and the Selling Stockholders' Counsel or any
underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by any such underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records"), as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and
employees to supply all information (together with the Records, the
"Information") reasonably requested by any such Inspector in connection
with such registration statement. Any of the Information which the
Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by
the Inspectors unless (i) the disclosure of such Information is
necessary to avoid or correct a misstatement or omission in the
registration statement, (ii) the release of such Information is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) such Information has been made generally
available to the public. The seller of Registrable Shares agrees that
it will, upon learning that disclosure of such Information is sought in
a court of competent jurisdiction, give notice to the Company and allow
the Company, at the Company's expense, to undertake appropriate action
to prevent disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by
comfort letters;
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(k) use its best efforts to obtain from its counsel an opinion
or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the
same entity and which may not be the Company) for such Registrable
Shares;
(m) issue to any underwriter to which any seller of
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares; provided, however, that the Company
shall have the right to approve any such underwriter with such approval
not to be unreasonably withheld;
(n) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or, if the
Common Stock is not listed on a national securities exchange, use its
best efforts to qualify such Registrable Shares for inclusion on the
automated quotation system of the National Association of Securities
Dealers, Inc. (the "NASD") or such national securities exchange as the
holders of a majority of such Registrable Shares shall request;
(o) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares contemplated hereby.
SECTION 9. Indemnification.
In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Company shall indemnify
and hold harmless the seller of such Registrable Shares, its officers and
directors, each underwriter, broker or any other person acting on behalf of such
seller and each other person, if any, who controls any of the foregoing persons
within the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, (or actions in respect thereof) to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or
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otherwise filed with the Commission, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Shares, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse such seller, such officer
or director, such underwriter, such broker or such other person acting on behalf
of such seller and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
seller or underwriter specifically for use in the preparation thereof; provided,
further, that, with respect to any preliminary prospectus, the foregoing
indemnity shall not inure to the benefit of (a) any underwriter or, in the case
of a registration statement filed with respect to an offering which is not an
underwritten offering, any Selling Stockholder, from who the person asserting
any losses, claims, damages and liabilities and judgments purchased Registrable
Shares or (b) any person controlling such underwriter or Selling Stockholder, if
(i) a copy of the prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was required by law
to have been delivered by such underwriter or Selling Stockholder (as
applicable), (ii) the prospectus had not been sent or given by or on behalf of
such underwriter or Selling Stockholder (as applicable) to such person with or
prior to a written confirmation of the sale of the Registrable Shares to such
person, (iii) the prospectus (as so amended and supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or judgment and
(iv) such failure to deliver the prospectus (as so amended and supplemented) was
not the result of noncompliance by the Company with Section 8(f) hereof.
In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in the preceding paragraph of this Section) the Company,
each director of the Company, each officer of the Company who shall sign such
registration statement, each underwriter, broker or other person acting on
behalf of such seller, each person who controls any of the foregoing persons
within the meaning of the Securities Act and each other seller of Registrable
Shares under such
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registration statement with respect to any statement or omission from such
registration statement, any preliminary prospectus or final prospectus contained
therein or otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, if such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company or such
underwriter through an instrument duly executed by such seller specifically for
use in connection with the preparation of such registration statement,
preliminary prospectus, final prospectus, amendment, supplement or document;
provided, however, that the obligation to indemnify will be several, not joint
and several, among such sellers of Registrable Shares, and the maximum amount of
liability in respect of such indemnification shall be in proportion to and
limited to, in the case of each seller of Registrable Shares, an amount equal to
the net proceeds actually received by such seller from the sale of Registrable
Shares effected pursuant to such registration.
The indemnification required by this Section 9 will be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred, subject to prompt refund in the event
any such payments are determined not to have been due and owing hereunder.
Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to in the preceding
paragraphs of this Section, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action (it being understood that no delay in
delivering or failure to deliver such notice shall relieve the indemnifying
persons from any liability or obligation hereunder unless (and then solely to
the extent that) the indemnifying person is prejudiced by such delay and/or
failure). In case any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof;
provided, however, that if any indemnified party shall have reasonably concluded
that there may be one or more legal or equitable defenses available to such
indemnified party which are additional to or conflict with those available to
the indemnifying party, or that such claim or litigation involves or could have
an effect upon matters beyond the scope of the indemnity agreement provided in
this Section, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and
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such indemnifying party shall reimburse such indemnified party and any person
controlling such indemnified party for that portion of the fees and expenses of
any counsel retained by the indemnified party which is reasonably related to the
matters covered by the indemnity agreement provided in this Section.
The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and will survive the transfer of securities.
If the indemnification provided for in this Section 9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, claim, damage, liability or action referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage or
liability as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the sellers of Registrable Shares agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by pro rata allocation or by any other method of allocation which did not take
into account the equitable considerations referred to herein. The amount paid or
payable to an indemnified party as a result of the losses, claims, damages,
liabilities or expenses referred to above shall be deemed to include, subject to
the limitation set forth in the fourth paragraph of this Section 9, any legal or
other expenses reasonably incurred in connection with investigating or defending
the same. Notwithstanding the foregoing, in no event shall the amount
contributed by a seller of Registrable Shares exceed the aggregate net offering
proceeds received by such seller from the sale of its Registrable Shares.
SECTION 10. Underwriting Agreement.
Notwithstanding the provisions of Sections 7, 8 and 9, to the
extent that the Company and the holders selling Registrable Shares in a proposed
registration shall enter into an underwriting or similar agreement, which
agreement contains
13
provisions covering one or more issues addressed in such Sections, the
provisions contained in such Sections addressing such issue or issues shall be
superseded with respect to such registration by such other agreement.
SECTION 11. Information by Stockholder.
Each Stockholder selling Registrable Shares in a proposed
registration shall furnish to the Company such written information regarding
such Stockholder and the distribution proposed by such Stockholder as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
SECTION 12. Exchange Act Compliance.
From and after the date that a registration statement filed by
the Company pursuant to the Securities Act relating to any class of the
Company's securities shall have become effective, the Company shall comply with
all of the reporting requirements of the Exchange Act and with all other public
information reporting requirements of the Commission which are conditions to the
availability of Rule 144 for the sale of the Common Stock. The Company shall
cooperate with each Stockholder in supplying such information as may be
necessary for such Stockholder to complete and file any information reporting
forms presently or hereafter required by the Commission as a condition to the
availability of Rule 144.
SECTION 13. No Conflict of Rights.
The Company represents and warrants to the Stockholders that
the registration rights granted to the Stockholders hereby do not conflict with
any other registration rights granted by the Company. The Company shall not,
after the date hereof, grant any registration rights which conflict with the
registration rights granted hereby.
SECTION 14. Restriction on Transfer.
The Restricted Shares shall not be transferable except upon
the conditions specified in the Stockholders Agreement.
SECTION 15. Termination.
This Agreement shall terminate and be of no further force or
effect on the date on which there remains no Restricted Shares outstanding.
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SECTION 16. Severability.
Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, and such invalid, void or
otherwise unenforceable provisions shall be null and void. It is the intent of
the parties, however, that any invalid, void or otherwise unenforceable
provisions be automatically replaced by other provisions which are as similar as
possible in terms to such invalid, void or otherwise unenforceable provisions
but are valid and enforceable to the fullest extent permitted by law.
SECTION 17. Entire Agreement.
This Agreement, together with the Stockholders' Agreement,
contains the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior arrangements or understandings with
respect hereto. In the event of any inconsistency between this Agreement and the
Stockholders' Agreement, the Stockholders' Agreement shall control.
SECTION 18. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the
Company and the Stockholders and their respective successors and permitted
assigns; provided, however, that each such person or entity shall, as a
condition to the effectiveness of such assignment, be required to execute a
counterpart to this Agreement whereupon such person or entity shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement with respect to such Restricted Shares.
SECTION 19. Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart. The failure of any
Stockholder to execute this Agreement does not make it invalid as against any
other Stockholder.
SECTION 20. Remedies.
(a) Each Stockholder shall have all rights and remedies
reserved for such Stockholder pursuant to this Agreement and the
Articles of Incorporation and the By-laws of the Company and all rights
and remedies which such Stockholder has been granted at
15
any time under any other agreement or contract and all of the rights
which such holder has under any law or equity. Any person having any
rights under any provision of this Agreement will be entitled to
enforce such rights specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other
rights granted by law or equity.
(b) The parties hereto agree that if any parties seek to
resolve any dispute arising under this Agreement pursuant to a legal
proceeding, the prevailing parties to such proceeding shall be entitled
to receive reasonable fees and expenses (including reasonable
attorneys' fees and expenses) incurred in connection with such
proceedings.
(c) It is acknowledged that it will be impossible to measure
in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in
the event of any such failure, an aggrieved person will be irreparably
damaged and will not have an adequate remedy at law. Any such person
shall, therefore, be entitled to injunctive relief, including specific
performance, to enforce such obligations, and if any action should be
brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an
adequate remedy at law.
SECTION 21. Notices.
All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument and shall be deemed to have been duly given when delivered in
person, by telecopy, by nationally-recognized overnight courier, or by first
class registered or certified mail, postage prepaid, addressed to such party at
the address set forth below or such other address as may hereafter be designated
in writing by the addressee to the addressor:
(i) if to the Company, to:
LPA Holding Corp.
14 Corporate Xxxxx
0000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx
President
(ii) if to the Investor, at the address set
forth in Schedule I;
16
with copies to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Tel.: (000) 000-0000
Attention: Xxxx X. Xxxxxx; and
(iii) if to Vestar, at the address set forth in
Schedule I;
with copies to:
Xxxxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx X. Xxxxx, Esq.
(iv) If the Management Stockholders:
to the address set forth for each such
Stockholder on Schedule I,
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next business day and (c) in the case of mailing, on
the third business day following such mailing if sent by certified mail, return
receipt requested.
SECTION 22. Governing Law; Jurisdiction; Venue; Process.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed in the State of Delaware and shall be construed without
regard to (i) any choice of law or conflict of law provision or rule (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware and
(ii) any presumption or other rule requiring the construction of an agreement
against the party causing it to be drafted. Any legal action in a proceeding
brought in accordance with this Section shall be brought in the courts of the
State of Delaware or of the United States District Court for the Southern
District of New York, and by execution and delivery of this Agreement, the
parties hereby accept for themselves and in
17
respect of their property, generally and unconditionally, the exclusive
jurisdiction of the aforesaid courts. The parties hereby irrevocably waive any
objection which they may now or hereafter have to laying of venue of any actions
or proceedings arising out of or in connection with this Agreement brought in
the courts referred to above and hereby further irrevocably waive and agree, not
to plead or claim in any such court that any such action or proceeding has been
brought in an inconvenient forum. The parties further agree that the mailing by
certified or registered mail, return receipt requested, of any process required
by any such court shall constitute valid and lawful service of process against
them, without necessity for service by any other means provided by statute or
rule of court.
SECTION 23. Further Assurances.
Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the provisions of this
Agreement and the consummation of the transactions contemplated hereby.
SECTION 24. Modifications; Amendments; Waivers.
The terms and provisions of this Agreement may not be
modified, amended or waived, except pursuant to a writing signed by the Company
and the Requisite Stockholders provided, however, that (i) any such amendment,
modification, or waiver that would adversely affect the rights hereunder of
Vestar shall require the written consent of Vestar and (ii) any such amendment,
modification, or waiver that would adversely affect the rights hereunder of any
Management Stockholders shall require the consent of Management Stockholders
owning a majority of the Restricted Shares held by all Management Stockholders.
SECTION 25. Headings.
The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
SECTION 26. Waiver.
No course of dealing between the Company and the Stockholders
(or any of them) or any delay in exercising any rights hereunder will operate as
a waiver of any rights of any party to this Agreement. The failure of any party
to enforce any of the provisions of this Agreement will in no way be construed
as a waiver of such provisions and will not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
18
SECTION 27. Mutual Waiver of Jury Trial.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS
AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
19
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement on the date first written above.
LPA HOLDING CORP.
By:
-------------------------------------
Name:
Title:
LPA INVESTMENT LLC
By:
-------------------------------------
Name:
Title:
VESTAR/LPT LIMITED
PARTNERSHIP
By: Vestar/LP Investment
Limited Partnership
By:
-------------------------------------
Name:
Title:
Schedule I
Shares of
Stockholders Common Stock
------------ ------------
Vestar/LPT Limited Partnership
c/o Vestar Capital Partners
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Investor
--------
LPA Investment LLC
c/o Chase Capital Partners
380 Madison Avenue, 12th Floor
New York, N.Y. 10017
Attention: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
