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Exhibit 10.8
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MCM GROUP, INC.
REGISTRATION AND PARTICIPATION AGREEMENT
Dated as of August 31, 1996
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TABLE OF CONTENTS
(Not Part of Agreement)
Page
1. Background.................................................................1
2. Definitions................................................................2
3. Registration...............................................................6
3.1. Registration on Request...........................................6
(a) Requests...............................................6
(b) Obligation to Effect Registration......................6
(c) Registration Statement Form............................7
(d) Expenses...............................................8
(e) Inclusion of Other Securities..........................8
(f) Effective Registration Statement.......................8
(g) Pro Rata Allocation....................................9
3.2. Incidental Registration...........................................9
3.3. Registration Procedures..........................................12
3.4. Underwritten Offerings...........................................17
(a) Underwritten Offerings Exclusive......................17
(b) Underwriting Agreement................................17
(c) Selection of Underwriters.............................18
(d) Incidental Underwritten Offerings.....................18
(e) Hold Back Agreements..................................19
3.5. Preparation; Reasonable Investigation............................20
3.6. Other Registrations..............................................20
3.7. Indemnification..................................................21
(a) Indemnification by the Company........................21
(b) Indemnification by the Sellers........................22
(c) Notices of Claims, etc................................23
(d) Other Indemnification.................................24
(e) Other Remedies........................................24
(f) Officers and Directors................................25
(g) Indemnification Payments..............................25
4. Participation Rights......................................................25
(a) Procedures for Qualifying Sales.......................25
(b) Qualifying Sale Defined...............................26
(c) Exclusion from Qualifying Sale. .....................27
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Page
5. Investors' Rights to Purchase Additional
Capital Stock........................................................27
(a) C&D Sale....................................................27
(b) Offer Procedures............................................27
6. Miscellaneous.............................................................29
6.1. (a) Rule 144....................................................29
(b) Legend on Stock Certificates................................29
6.2. Amendments and Waivers...........................................30
6.3. Nominees for Beneficial Owners...................................30
6.4. Successors, Assigns and Transferees..............................31
6.5. Notices..........................................................31
6.6. No Inconsistent Agreements.......................................32
6.7. Remedies; Attorneys' Fees........................................32
6.8. Stock Splits, etc................................................33
6.9. Term ...........................................................33
6.10. Severability....................................................33
6.11. Headings........................................................33
6.12. Counterparts....................................................33
6.13. Governing Law...................................................34
6.14. No Third Party Beneficiaries....................................34
6.15. Consent to Jurisdiction.........................................34
6.16. Waiver of Jury Trial............................................34
6.17. Entire Agreement................................................34
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EXHIBIT 10.8
REGISTRATION AND PARTICIPATION AGREEMENT
REGISTRATION AND PARTICIPATION AGREEMENT, dated as of August
31, 1996, among MCM Group, Inc., a Delaware corporation (the "Company"), THE
XXXXXXX & DUBILIER PRIVATE EQUITY FUND IV LIMITED PARTNERSHIP ("C&D Fund IV")and
the undersigned parties hereto (each, a "Shareholder").
1. Background. (a) The Company was formed by VK/AC Holding,
Inc., a Delaware corporation ("VKAC Holding"), for the purpose of holding all of
the outstanding shares of common stock of its wholly owned subsidiary, XxXxxxxx,
Xxxxxxxx & Xxxxxx, Inc., a New York corporation ("MCM").
(b) VKAC Holding has distributed all of the outstanding shares
of the Company's Class A common stock, par value $0.01 per share (the "Class A
Common Stock") by means of a one-time special dividend (the "Distribution") to
the common stockholders of VKAC Holding of record on the record date for the
Distribution in proportion to each such stockholder's respective holdings of
VKAC Holding common stock.
(c) Shares of the Class A Common Stock are, under certain
limited circumstances specified in the Company's Certificate of Incorporation,
exchangeable for shares of the Company's Class B common stock, par value $0.01
per share (the "Class B Common Stock"), and shares of the Class B Common Stock
and of the Company's Class C common stock, par value $0.01 per share (the "Class
C Common Stock" and, together with the Class A Common Stock and the Class B
Common Stock, the "Common Stock") are, under certain limited circumstances
specified in the Company's Certificate of Incorporation, convertible into shares
of the Class A Common Stock.
(d) The Company has adopted a special option plan providing
for a one-time special grant of options to purchase shares of the Class A Common
Stock to those executive officers and current and former employees of VKAC
Holding and its subsidiaries who hold as of the date hereof options to purchase
shares of the Class A Common Stock, par value $0.01 per share, of VKAC Holding.
(e) The Company may in the future issue or sell shares of
Class C Common Stock to certain key executives and employees of the Company or
one of its subsidiaries and has
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adopted an option plan, and may in the future adopt additional option plans,
that will permit executive officers and certain employees of the Company and its
subsidiaries to acquire shares of the Company's Class C Common Stock.
(f) The Company may in the future issue or sell, and/or grant
options to purchase, shares of Class C Common Stock to certain directors of the
Company or directors or senior executives of corporations in which entities
managed or sponsored by CD&R have made substantial equity investments or other
individuals with whom CD&R has a consulting or advisory relationship.
(g) This Agreement shall become effective as of the date
hereof with respect to any Registrable Securities (as hereinafter defined)
distributed by VKAC Holding in the Distribution and, with respect to any other
Registrable Securities, upon the issuance or sale of Common Stock to any party
pursuant to any Stock Subscription Agreement (as defined hereinafter) that
provides such Common Stock shall be Registrable Securities.
2. Definitions. For purposes of this Agreement, the following
terms have the following respective meanings:
"Affiliate": With respect to any Person, any other Person
directly or indirectly Controlling, Controlled by or under common Control with
such first Person, provided that any director or member of management or other
employee of the Company or any of its subsidiaries shall not be deemed to be an
Affiliate of C&D Fund IV.
"Business Day": A day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required to
close.
"C&D Sale": See Section 4(a).
"C&D Fund IV": The Xxxxxxx & Dubilier Private Equity Fund IV
Limited Partnership, a Connecticut limited partnership.
"CD&R": Xxxxxxx, Dubilier & Rice, Inc., a Delaware
corporation.
"Class A Common Stock": See Section 1(b).
"Class B Common Stock": See Section 1(c).
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"Class C Common Stock": See Section 1(c).
"Common Stock": See Section 1(e).
"Company": See the introduction to this Agreement.
"Control": The power to direct the affairs of a Person by
reason of ownership of voting stock, by control or otherwise.
"Distribution": See Section 1(b).
"Exchange Act": The Securities Exchange Act of 1934, as
amended
"Management Investor": Any executive or employee of the
Company or any of its subsidiaries who holds Registrable Securities.
"NASD": National Association of Securities Dealers, Inc.
"NASDAQ": The NASD Automated Quotation System.
"Offer": See Section 5(a).
"Offered Securities": See Section 5(b).
"Person": Any natural person, firm, partnership, association,
corporation, company, trust, business trust, governmental entity or other entity
and any successor (by merger or otherwise) of such entity.
"Proportionate Share": See Section 5(b).
"Public Market": A "Public Market" for the Company's Common
Stock shall be deemed to have been established at such time as 30% of the Common
Stock (on a fully diluted basis) has been sold to the public pursuant to an
effective registration statement under the Securities Act or pursuant to Rule
144.
"Public Offering": An underwritten public offering of Common
Stock led by at least one underwriter of nationally recognized standing.
"Qualifying Number": See Section 4(b).
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"Qualifying Sale": See Section 4(b).
"Registrable Securities": (a) Any shares of Class A Common
Stock distributed by VKAC Holding to its common stockholders pursuant to the
Distribution, (b) any shares of Common Stock issued pursuant to any Stock
Subscription Agreement that provides that such Common Stock shall be Registrable
Securities, except for any such Common Stock issued pursuant to an effective
registration statement under the Securities Act on Form X-0, Xxxx X-0, Form S-1
or any successor form to any thereof (unless such Common Stock is held by a
Management Investor who is an Affiliate of the Company), (c) any shares of
Common Stock issued pursuant to the terms of, and under the circumstances set
forth in, Section 5, and (d) any securities issued or issuable with respect to
any Common Stock referred to in the foregoing clauses (i) upon any conversion or
exchange thereof, (ii) by way of stock dividend or stock split, (iii) in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or (iv) otherwise, in all cases subject to the
penultimate paragraph of Section 3.3. As to any particular Registrable
Securities, once issued, such securities shall cease to be Registrable
Securities when (A) a registration statement (other than a Special Registration
pursuant to which such securities were issued by the Company to a Management
Investor who is an Affiliate of the Company) with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (B) such securities shall have been distributed to the public in
reliance upon Rule 144, (C) subject to the relevant provisions of the Company's
Certificate of Incorporation and the Stock Subscription Agreement pursuant to
which such securities shall have been issued, such securities shall have been
otherwise transferred, new certificates for such securities not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any similar state
law then in force, (D) except for purposes of Sections 4 and 5, such securities
have been held, or deemed, by virtue of tacking holding periods as contemplated
by Rule 144, to be held for a period of three years by a Person who is not an
Affiliate of the Company, (E) such securities shall have ceased to be
outstanding, (F) except for purposes of Articles 4 and 5, with respect to any
such securities acquired by a Management Investor pursuant to the exemption
from the registration requirements of
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the Securities Act contained in Rule 701 (or any successor provision)
thereunder, at any time following the date the Company registers a class of
equity securities under Section 12 of the Exchange Act or (G) the Company shall
have registered the Class A Common Stock under Section 12 of the Exchange Act
and such securities are held by a Person who is not an Affiliate of the Company;
provided that (x) for purposes of clauses (A) and (G) above, (1) securities held
by a Person who was not an Affiliate of the Company at the time of the event
specified in such clauses but who thereafter becomes an Affiliate of the Company
shall be and remain Registrable Securities for so long as such Person is an
Affiliate of the Company and (2) securities held by a Person who was an
Affiliate of the Company at the time of the event specified in such clauses
shall remain Registrable Securities for only so long as such Person remains an
Affiliate of the Company and (y) with respect to any securities that were
formerly Registrable Securities the Board of Directors may, under such
circumstances as it deems appropriate, designate such securities as Registrable
Securities for purposes of this Agreement.
"Registration Expenses": All expenses incident to the
Company's performance of its obligations under or compliance with Section 3,
including, but not limited to, all registration and filing fees, all fees and
expenses of complying with securities or blue sky laws, all fees and expenses
associated with listing securities on exchanges or NASDAQ, all fees and other
expenses associated with filings with the NASD (including, if required, the fees
and expenses of any "qualified independent underwriter" and its counsel), all
printing expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, and the expenses of any special audits made
by such accountants required by or incidental to such performance and
compliance and the fees and disbursements of one law firm (but not more than
one) retained by the holders holding a majority (by number of shares) of the
Registrable Securities.
"Requisite Percentage of Stockholders": The holder or holders
of at least (a) as to the initial request under Section 3.1, 50% (by number of
shares) of the Registrable Securities held at the time outstanding or (b) as to
any other request, 10% (by number of shares) of the Registrable Securities at
the time outstanding.
"Rule 144": Rule 144 (or any successor provision) under the
Securities Act.
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"Rule 144A": Rule 144A (or any successor provision) under the
Securities Act.
"Sale Notice": See Section 4(a).
"Securities Act": The Securities Act of 1933, as amended.
"Securities and Exchange Commission": The Securities and
Exchange Commission or any other Federal agency at the time administering the
Securities Act or the Exchange Act.
"Special Registration": (a) The registration of shares of
equity securities and/or options or other rights in respect thereof to be
offered to directors, members of management, employees, consultants or sales
agents, distributors or similar representatives of the Company or its direct or
indirect Subsidiaries or senior executives of Persons controlled by an Affiliate
of the Company or (b) the registration of equity securities and/or options or
other rights in respect thereof solely on Form S-4 or S-8 or any successor form.
"Stock Subscription Agreements": Stock subscription
agreements, stock option agreements and any other agreements, plans or
arrangements pursuant to which Common Stock is issued or sold by the Company to
any party.
"Subsidiary": With respect to any Person, any corporation or
Person, a majority of the outstanding voting stock or other equity interests of
which is owned, directly or indirectly, by that Person.
"VK/AC Holding": See Section 1.
3. Registration.
3.1. Registration on Request.
(a) Requests. Subject to the provisions of Section 3.6, at
any time or from time to time the Requisite Percentage of Stockholders shall
have the right to make one or more written requests that the Company effect the
registration under the Securities Act of all or part of the Registrable
Securities of the holder or holders making such request, which requests shall
specify the intended method of disposition thereof by such holder or holders.
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(b) Obligation to Effect Registration. Upon receipt by the
Company of any request for registration pursuant to Section 3.1(a), the Company
will promptly give written notice of such requested registration to all holders
of Registrable Securities, and thereupon will use its best efforts to effect the
registration under the Securities Act of
(i) the Registrable Securities which the Company
has been so requested to register pursuant to Section 3.1(a), and
(ii) all other Registrable Securities which the Company has
been requested to register by the holders thereof by written request
given to the Company within 30 days after the Company has given such
written notice (which request shall specify the intended method of
disposition of such Registrable Securities),
all to the extent required to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered. Notwithstanding the preceding sentence:
(x) the Company shall not be required to effect a registration
requested pursuant to Section 3.1 if the aggregate number of
Registrable Securities referred to in clauses (i) and (ii) of this
Section 3.1(a) included in such registration shall be less than 20% of
the Registrable Securities at the time outstanding; and
(y) if the Board of Directors of the Company (the "Board")
determines in its good faith judgment, after consultation with a firm
of nationally recognized underwriters, that there will be an adverse
effect on a then contemplated initial public offering of the Common
Stock, the Requisite Percentage of Stockholders shall be given notice
of such fact and shall be deemed to have withdrawn such request and
such registration shall not be deemed to have been effected or
requested pursuant to this Section 3.1.
(c) Registration Statement Form. Each registration requested
pursuant to this Section 3.1 shall be effected by the filing of a registration
statement on Form S-1, Form S-2 or Form S-3 (or any other form which includes
substantially the same information as would be required to be included in a
registration statement on such forms as presently constituted), unless the use
of a different form is
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(i) required by law or (ii) permitted by law and agreed to in writing by holders
holding at least a majority (by number of shares) of the Registrable Securities
as to which registration has been requested pursuant to this Section 3.1. At any
time after the Company has issued and sold any shares of its capital stock
registered under an effective registration statement under the Securities Act,
or after the Company shall have registered any class of equity securities
pursuant to Section 12 of the Exchange Act, it will use its best efforts to
qualify for registration on Form S-2 or Form S-3 (or any other comparable form
hereinafter adopted).
(d) Expenses. The Company will pay all Registration Expenses
in connection with the first three registrations which are effected as
requested under Section 3.1(a). The Registration Expenses in connection with
each other registration, if any, requested under this Section 3.1 shall be
apportioned among the holders whose Registrable Securities are then being
registered, on the basis of the respective amounts (by number of shares) of
Registrable Securities then being registered by them or on their behalf.
However, in the case of all registrations requested under Section 3.1(a), the
Company shall pay all amounts in respect of (i) any allocation of salaries of
personnel of the Company and its Subsidiaries or other general overhead
expenses of the Company and its Subsidiaries or other expenses for the
preparation of financial statements or other data normally prepared by the
Company and its Subsidiaries in the ordinary course of its business, (ii) the
expenses of any officers' and directors' liability insurance, (iii) the expenses
and fees for listing the securities to be registered on each exchange on which
similar securities issued by the Company are then listed or, if no such
securities are then listed on an exchange selected by the Company and (iv) all
fees associated with filings required to be made with the NASD (including, if
applicable, the fees and expenses of any "qualified independent underwriter" and
its counsel as may be required by the rules and regulations of the NASD).
(e) Inclusion of Other Securities. The Company shall not
register securities (other than Registrable Securities) for sale for the
account of any Person other than the Company in any registration requested
pursuant to Section 3.1(a) unless permitted to do so by the written consent of
holders holding at least a majority (by number of shares) of the Registrable
Securities proposed to be sold in such registration.
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(f) Effective Registration Statement. A registration
requested pursuant to Section 3.1(a) will not be deemed to have been effected
unless it has become effective for the period specified in Section 3.3(b).
Notwithstanding the preceding sentence, a registration requested pursuant to
Section 3.1(a) which does not become effective after the Company has filed a
registration statement with respect thereto solely by reason of the refusal to
proceed of the holder or holders of Registrable Securities requesting the
registration shall be deemed to have been effected by the Company at the request
of such holder or holders.
(g) Pro Rata Allocation. If the holders of a majority (by
number of shares) of the Registrable Securities for which registration is being
requested pursuant to Section 3.1(a) determine, based on consultation with the
managing underwriters or, in an offering which is not under written, with an
investment banker, that the number of securities to be sold in any such offering
should be limited due to market conditions or otherwise, all holders of
Registrable Securities proposing to sell their securities in such registration
shall share pro rata in the number of securities being offered (as determined by
the holders holding a majority (by number of shares) of the Registrable
Securities for which registration is being requested in consultation with the
managing underwriters or investment banker, as the case may be) and registered
for their account, such sharing to be based on the number of Registrable
Securities as to which registration was requested by such holders and the number
of securities that the Company proposed to sell for its own account in such
offering, respectively.
3.2. Incidental Registration. If the Company at any time
proposes to register any of its equity securities (as defined in the Exchange
Act) under the Securities Act (other than pursuant to Section 3.1 or pursuant to
a Special Registration), whether or not for sale for its own account, and the
registration form to be used may be used for the registration of Registrable
Securities, it will each such time give prompt written notice to all holders of
Registrable Securities of its intention to do so and of such holders' rights
under this Section and, upon the written request of any holder of Registrable
Securities given to the Company within 30 days after the Company has given any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by such holder and the in tended method of disposition thereof),
the Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Com-
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pany has been so requested to register by the holders there of, to the extent
required to permit the disposition (in accordance with the intended methods
thereof as aforesaid) of the Registrable Securities so to be registered,
provided that:
(a) if such registration shall be in connection with the
initial public offering of the Common Stock, the Company shall not
include any Registrable Securities in such proposed registration if
the Board shall have determined, after consultation with the managing
underwriters for such offering, that it is not in the best interests of
the Company to include any Registrable Securities in such
registration, provided that, if the Board makes such a determination,
the Company shall not include in such registration any securities not
being sold for the account of the Company;
(b) if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register such
securities, the Company may, at its election, give written notice of
such determination to each holder of Registrable Securities or other
securities that was previously notified of such registration and, there
upon, shall not register any Registrable Securities in connection with
such registration (but shall nevertheless pay the Registration
Expenses in connection therewith), without prejudice, however, to the
rights of any holder or holders of Registrable Securities to request
that a registration be effected under Section 3.1;
(c) if the Company shall be advised in writing by the managing
underwriters (or, in connection with an offering which is not
underwritten, by an investment banker) (and the Company shall so advise
each holder of Registrable Securities requesting registration of such
advice) that in their or its opinion the number of securities requested
to be included in such registration (whether by the Company, pursuant
to this Section 3.2 or pursuant to any other rights granted by the
Company to a holder or holders of its securities to request or demand
such registration or inclusion of any such securities in any such
registration) exceeds the number of such securities which can be sold
in such offering,
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(i) the Company shall include in such registration the number
(if any) of Registrable Securities so requested to be included which
in the opinion of such underwriters or investment banker, as the case
may be, can be sold and shall not include in such registration any
securities (other than securities being sold by the Company, which
shall have priority in being included in such registration) so
requested to be included other than Registrable Securities unless all
Registrable Securities requested to be so included are included
therein, and
(ii) if in the opinion of such underwriters or investment
banker, as the case may be, some but not all of the Registrable
Securities may be so included, all holders of Registrable Securities
requested to be included therein shall share pro rata in the number of
shares of Registrable Securities included in such public offering on
the basis of the number of Registrable Securities requested to be
included therein by such holders, provided that, in the case of a
registration initially requested or demanded by a holder or holders of
securities other than Registrable Securities, the holders of the
Registrable Securities requested to be included therein and the holders
of such other securities shall share pro rata (based on the number of
shares if the requested or demanded registration is to cover only
Common Stock and, if not based on the proposed offering price of the
total number of securities included in such public offering requested
to be included therein),
and the Company shall so provide in any registration agreement hereinafter
entered into with respect to any of its securities; and
(d) if prior to the effective date of the registration statement filed
in connection with such registration, the Company is informed by the managing
underwriter (or, in connection with an offering which is not underwritten, by
an investment banker) that the price at which such securities are to be sold is
a price below that price which the Requesting Holders shall have indicated to be
acceptable, the Company shall promptly notify the Requesting Holders of such
fact, and each such Requesting Holder shall have the right to
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withdraw its request to have its Registrable Securities
included in such registration statement.
The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 3.2. No registration effected under this Section 3.2 shall relieve the
Company from its obligation to effect registrations upon request under Section
3.1.
3.3. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 3.1 and 3.2, the
Company will promptly:
(a) subject to clauses (x) and (y) of Section 3.1(b), prepare
and file with the Securities and Exchange Commission a registration
statement with respect to such securities, make all required filings
with the NASD and use best efforts to cause such registration
statement to become effective;
(b) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith and such
other documents as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
registration statement until such time as all of such securities have
been disposed of in accordance with the intended methods of disposition
by the seller or sellers thereof set forth in such registration
statement, but in no event for a period of more than six months after
such registration statement becomes effective;
(c) furnish to counsel (if any) selected by the holders of a
majority (by number of shares) of the Registrable Securities covered by
such registration statement copies of all documents proposed to be
filed with the Securities and Exchange Commission in connection with
such registration, which documents will be subject to the review of
such counsel;
(d) furnish to each seller of such securities, without charge,
such number of conformed copies of such registration statement and of
each such amendment and
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supplement thereto (in each case, including all exhibits and documents
filed therewith (other than those filed on a confidential basis),
except that the Company shall not be obligated to furnish any seller of
securities with more than two copies of such exhibits and documents),
such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and any summary
prospectus) in conformity with the requirements of the Securities Act,
and such other documents, as such seller may reasonably request in
order to facilitate the disposition of the securities owned by such
seller;
(e) use its best efforts (x) to register or qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each seller shall
request, (y) to keep such registration or qualification in effect for
so long as such registration statement remains in effect and (z) to do
any and all other acts and things which may be necessary or advisable
to enable such seller to consummate the disposition in such
jurisdictions of the securities owned by such seller, except that the
Company shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction wherein it
is not so qualified, subject itself to taxation in any jurisdiction
wherein it is not so subject, or take any action which would subject it
to general service of process in any jurisdiction wherein it is not so
subject;
(f) in connection with an underwritten public offering only,
furnish to each seller a signed counterpart, addressed to the sellers,
of
(i) an opinion of counsel for the Company
experienced in securities law matters, dated the
effective date of the registration statement, and
(ii) a "comfort" letter signed by the independent public
accountants who have issued an audit report on the Company's
financial statements included in the registration statement,
subject to such seller having executed and delivered to the
independent public accountants such certificates and documents
as such accountants shall reasonably request and provided that
such accountants shall be permitted by the standards
applicable to certified public accountants to deliver a
"comfort"
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letter to such seller,
covering substantially the same matters with respect to the
registration statement (and the prospectus included therein) and, in
the case of such accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of securities;
(g)(i) notify each holder of Registrable Securities covered
by such registration statement if such registration statement, at the
time it or any amendment thereto became effective, (x) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading upon discovery by the Company of such material
misstatement or omission or (y) upon discovery by the Company of the
happening of any event as a result of which the Company believes there
would be such a material misstatement or omission, and, as promptly as
practicable, prepare and file with the Securities and Exchange
Commission a post-effective amendment to such registration statement
and use best efforts to cause such post-effective amendment to become
effective such that such registration statement, as so amended, shall
not contain 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, and (ii) notify each holder of
Registrable Securities covered by such registration statement, at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act, if 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, in light of
the circumstances under which they were made, not misleading upon
discovery by the Company of such material misstatement or omission or
upon discovery by the Company of the happening of any event as a result
of which the Company believes there would be a material misstatement or
omission, and, as promptly as is practicable, prepare and furnish to
such holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such
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securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(h) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement of the Company complying
with the provisions of Section 11(a) of the Securities Act and Rule 158
under the Securities Act;
(i) notify each seller of any securities covered by such
registration statement (i) when such registration statement, or any
post-effective amendment to such registration statement, shall have
become effective, or any amendment of or supplement to the prospectus
used in connection therewith shall have been filed, (ii) of any request
by the Securities and Exchange Commission to amend such registration
statement or to amend or supplement such prospectus or for additional
information, (iii) of the issuance by the Securities and Exchange
Commission of any stop order suspending the effectiveness of such
registration statement or of any order preventing or suspending the use
of any preliminary prospectus, and (iv) of the suspension of the
qualification of such securities for offering or sale in any
jurisdiction, or of the institution of any proceedings for any of such
purposes;
(j) use its best efforts (i) (A) to list such securities on
any securities exchange on which the Common Stock is then listed or, if
no Common Stock is then listed, on an exchange selected by the Company,
if such listing is then permitted under the rules of such exchange or
(B) if such listing is not practicable or the Board determines that
quotation as a NASDAQ National Market System security is preferable, to
secure designation of such securities as a NASDAQ "national market
system security" within the meaning of Rule 11Aa2-1 under the Exchange
Act and (ii) to provide and cause to be maintained a transfer agent and
registrar for such Registrable Securities not later than the effective
date of such registration statement; and
(k) use every reasonable effort to obtain the lifting of any
stop order that might be issued suspend-
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ing the effectiveness of such registration statement or of any order
preventing or suspending the use of any preliminary prospectus,
provided that if the Company is unable to obtain the lifting of any
such stop order in connection with a registration pursuant to Section
3.1(a), the request for registration shall not be deemed exercised for
purposes of determining whether such registration has been effected for
purposes of Section 3.1(a) or (d).
The Company may require each seller of any securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing and as shall be
required by law in connection therewith. Each such holder agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such holder not
materially misleading.
The Company agrees not to file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to any seller of any securities covered thereby by name, or otherwise
identifies such seller as the holder of any securities of the Company, without
the consent of such seller, such consent not to be unreasonably withheld, except
that no such consent shall be required for any disclosure that is required by
law.
By acquisition of Registrable Securities, each holder of such
Registrable Securities shall be deemed to have agreed that upon receipt of any
notice from the Company pursuant to Section 3.3(g), such holder will promptly
discontinue such holder's disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such holder
shall have received, in the case of clause (i) of Section 3.3(g), notice from
the Company that such registration statement has been amended, as contemplated
by Section 3.3(g), and, in the case of clause (ii) of Section 3.3(g), copies of
the supplemented or amended prospectus contemplated by Section 3.3(g). If so
directed by the Company, each holder of Registrable Securities will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the
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event that the Company shall give any such notice, the period mentioned in
Section 3.3(b) shall be extended by the number of days during the period from
and including the date of the giving of such notice to and including the date
when each seller of any Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 3.3(g).
Although shares of Class B Common Stock and of Class C Common
Stock and shares of Class A Common Stock issued upon the exercise of options are
included in the definition of Registrable Securities, the Company shall, in
respect of any such Registrable Securities requested to be registered pursuant
hereto, be required to include in any registration statement only shares of
Class A Common Stock issuable upon conversion of Class B Common Stock or Class C
Common Stock or upon exercise of such options and only if the Company has
received assurances, reasonably satisfactory to it, that such Class B Common
Stock or Class C Common Stock, as the case may be, will be transferred in
connection with a public offering so as to automatically convert into Class A
Common Stock as provided in the Company's Certificate of Incorporation or such
options will be exercised, as the case may be, promptly after such registration
statement has become effective or the sale to an underwriter has been
consummated so that only Class A Common Stock shall be distributed to the public
under such registration statement.
3.4. Underwritten Offerings. The provisions of this Section
3.4 do not establish additional registration rights but instead set forth
procedures applicable, in addition to those set forth in Sections 3.1 through
3.3, to any registration which is an underwritten offering.
(a) Underwritten Offerings Exclusive. Whenever a registration
requested pursuant to Section 3.1 is for an underwritten offering, only
securities which are to be distributed by the underwriters may be included in
the registration.
(b) Underwriting Agreement. If requested by the underwriters
for any underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Section 3.1(a), the Company shall enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the holders of a majority
(by number of shares)
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of the Registrable Securities to be covered by such registration and to the
underwriters and to contain such representations and warranties by the Company
and such other terms and provisions as are customarily contained in agreements
of this type, including, but not limited to, indemnities to the effect and to
the extent provided in Section 3.7, provisions for the delivery of officers'
certificates, opinions of counsel and accountants' "comfort" letters and
hold-back arrangements. The holders of Registrable Securities to be distributed
by such underwriters shall be parties to such underwriting agreement and may, at
their option, require that any or all of the representations and warranties by,
and the agreements on the part of, the Company to and for the benefit of such
underwriters be made to and for the benefit of such holders of Registrable
Securities and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement shall also be conditions
precedent to the obligations of such holders of Registrable Securities. In the
event that any condition to the obligations under any such underwriting
agreement are not met or waived, and such failure to be met or waived is not
attributable to the fault of the selling stockholders requesting a demand
registration pursuant to Section 3.1(a), such request for registration shall not
be deemed exercised for purposes of determining whether such registration has
been effected for purposes of Section 3.1(a) or (d). No holder of Registrable
Securities shall be required by the Company to make any representations or
warranties to, or agreements with, the Company or the underwriters other than as
set forth in Sections 3.4(e) and 3.7(b), representations, warranties or
agreements regarding such holder and such holder's intended method of
distribution and any other representations required by applicable law.
(c) Selection of Underwriters. Whenever a registration
requested pursuant to Section 3.1(a) is for an underwritten offering, the
Company will have the right to select the managing underwriters to administer
the offering, which managing underwriters shall be underwriters of nationally
recognized standing. If the Company at any time proposes to register any of its
securities under the Securities Act for sale for its own account and such
securities are to be distributed by or through one or more underwriters, the
Company will have the right to select the managing underwriters to administer
the offering at least one of which shall be an underwriter of nationally
recognized standing.
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(d) Incidental Underwritten Offerings. Subject to the
provisions of the proviso to the first sentence of Section 3.2, if the Company
at any time proposes to register any of its equity securities under the
Securities Act (other than pursuant to Section 3.1 or pursuant to a Special
Registration), whether or not for its own account, and such securities are to
be distributed by or through one or more underwriters, the Company will give
prompt written notice to all holders of Registrable Securities of its intention
to do so and, if requested by any holder of Registrable Securities, will use
its best efforts to arrange for such underwriters to include the Registrable
Securities to be offered and sold by such holder among those to be distributed
by such underwriters. The holders of Registrable Securities to be distributed by
such underwriters shall be parties to the underwriting agreement between the
Company and such underwriters and may, at their option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such holders of Registrable Securities and that any or
all of the conditions precedent to the obligations of the underwriters under
such underwriting agreement shall also be conditions precedent to the
obligations of such holders of Registrable Securities. No such holder of
Registrable Securities shall be required by the Company to make any
representations or warranties to, or agreements with, the Company or the
underwriters other than as set forth in Sections 3.4(e) and 3.7(b),
representations, warranties or agreements regarding such holder and such
holder's intended method of distribution and any other representations required
by applicable law.
(e) Hold Back Agreements. If and whenever the Company proposes
to register any of its equity securities under the Securities Act, whether or
not for its own account (other than pursuant to a Special Registration), or is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 3.1 or 3.2, each holder
of Registrable Securities agrees by acquisition of such Registrable Securities
not to effect (other than pursuant to such registration) any public sale or
distribution, including, but not limited to, any sale pursuant to Rule 144 or
Rule 144A, of any Registrable Securities, any other equity securities of the
Company or any securities convertible into or exchangeable or exercisable for
any equity securities of the Company for 180 days after, and during the 20 days
prior to, the effective date of such registration and the Company
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agrees to cause each holder of any equity security, or of any security
convertible into or exchangeable or exercisable for any equity security, of the
Company purchased from the Company at any time other than in a Public Offering
to enter into a similar agreement with the Company. The Company further agrees
not to effect (other than pursuant to such registration or pursuant to a Special
Registration) any public sale or distribution, or to file any registration
statement (other than such registration or a Special Registration) covering
any, of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 20 days prior to,
and for 180 days after, the effective date of such registration if required by
the managing underwriter.
3.5. Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act, the Company will give the
holders of such Registrable Securities so to be registered and their
underwriters, if any, and their respective counsel and accountants the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Securities and Exchange
Commission, and each amendment thereof or supplement thereto, and will give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have issued audit reports on its financial statements as shall
be necessary, in the opinion of such holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
3.6. Other Registrations. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 3.1 or 3.2, and if such
registration shall not have been withdrawn or abandoned, the Company shall not
be obligated to and shall not file any registration statement with respect to
any of its securities (including Registrable Securities) under the Securities
Act (other than a Special Registration), whether of its own accord or at the
request or demand of any holder or holders of such securities, until a period of
six months shall have elapsed from the effective date of such previous
registration; and the Company shall so provide in any registration rights
agreement with respect to any of its equity securities.
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3.7. Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, the Company will and hereby does indemnify and hold harmless
each seller of such securities, its directors, officers, and employees, each
other person who participates as an underwriter, broker or dealer in the
offering or sale of such securities and each other person, if any, who controls
such seller or any such participating person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
and all losses, claims, damages or liabilities, joint or several, to which such
seller or any such director, officer, employee, participating person or
controlling person may become subject under the Securities Act or otherwise
(including, without limitation, the reasonable fees and expenses of legal
counsel incurred in connection with any claim for indemnity hereunder), insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a fact contained in any registration statement under
which such securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein or related
thereto, or any amendment or supplement thereto, or (ii) any omission or
alleged omission to state a fact required to be stated in any such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement or necessary to make the statements therein not
misleading; and the Company will reimburse such seller and each such director,
officer, employee, participating person and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding, provided
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such seller or participating person expressly for use in the
preparation thereof and provided, further, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in
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the prospectus, if such untrue statement or alleged untrue statement or omission
or alleged omission is completely corrected in an amendment or supplement to the
prospectus and the seller of Registrable Securities thereafter fails to deliver
such prospectus as so amended or supplemented prior to or concurrently with the
sale of Registrable Securities to the person asserting such loss, claim, damage,
liability or expense after the Company had furnished such seller with a
sufficient number of copies of the same or if the seller received notice from
the Company of the existence of such untrue statement or alleged untrue
statement or omission or alleged omission and the seller continued to dispose of
Registrable Securities prior to the time of the receipt of either (A) an amended
or supplemented prospectus which completely corrected such untrue statement or
omission or (B) a notice from the Company that the use of the existing
prospectus may be resumed. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such seller or any such
director, officer, employee, participating person or controlling person and
shall survive the transfer of such securities by such seller.
(b) Indemnification by the Sellers. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, each of the prospective sellers of such securities will
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such registration statement, each other
person who participates as an underwriter, broker or dealer in the offering or
sale of such securities and each other person, if any, who controls the Company
or any such participating person within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which the Company or any
such director, officer, employee, participating person or controlling person may
become subject under the Securities Act or otherwise (including, without
limitation, the reason able fees and expenses of legal counsel incurred in
connection with any claim for indemnity hereunder), insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a fact contained in, or any omission or alleged omission to state a fact with
respect to such seller required to be stated in, any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary pro-
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spectus contained therein or related thereto, or any amendment or supplement
thereto, if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by such seller
expressly for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement; and
the seller will reimburse the Company and each such director, officer, employee,
participating person and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding, provided that the liability
of each such seller will be in proportion to and limited to the net amount
received by such seller (after deducting any underwriting discount and expenses)
from the sale of Registrable Securities pursuant to such registration statement.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director, officer,
participating person or controlling person and shall survive the transfer of
such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 3.7,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party hereunder, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided therein shall not relieve the indemnifying party of
its obligations under the preceding paragraphs of this Section 3.7. In case any
such action is brought against an indemnified party, the indemnifying party will
be entitled to participate therein 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 will not be liable to
such indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof, provided that if such
indemnified party and the indemnifying party reasonably determine, based upon
advice of their respective independent counsel, that a conflict of interest may
exist between the indemnified party and the indemnifying party with respect to
such action and that it is advisable for such indemnified party to be
represented by separate counsel,
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such indemnified party may retain other counsel, reasonably satisfactory to the
indemnifying party, to represent such indemnified party, and the indemnifying
party shall pay all reasonable fees and expenses of such counsel. No
indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of such indemnified party, which consent shall not be
unreasonably withheld, 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 such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Section 3.7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
such Registrable Securities under any Federal or state law or regulation of
governmental authority other than the Securities Act.
(e) Other Remedies. If for any reason the foregoing indemnity
under Section 3.7(a) or (b) is unavailable, or is insufficient to hold harmless
an indemnified party, other than by reason of the exceptions provided therein,
then the indemnifying party and the indemnified party under Section 3.7(a) or
(b) shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, or
provides a lesser sum to the indemnified party than the amount hereinafter
calculated, in such proportion as is appropriate to reflect not only the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other but also the relative benefits received by the indemnifying
party and the indemnified party from the offering of Registrable Securities
(taking into account the portion of the proceeds of the offering realized by
each such party) as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Any party's obligation
to contribute pursuant to this Section 3.7(e) is several (in proportion to the
relative value of
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their Registrable Securities covered by a registration statement) and not joint
with the obligations of any other party. No party shall be liable for
contribution under this Section 3.7(e) except to the extent and under such
circumstances as such party would have been liable to indemnify under this
Section 3.7 if such indemnification were enforceable under applicable law.
(f) Officers and Directors. As used in this Section 3.7, the
terms "officers" and "directors" shall include the partners of the holders of
Registrable Securities which are partnerships.
(g) Indemnification Payments. The indemnification and
contribution required by this Section 3.7 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred;
provided that in the event it is ultimately determined that any amounts so paid
were not subject to indemnification or contribution hereunder, the recipient
thereof shall promptly return such amounts to payor thereof.
4. Participation Rights. So long as any Registrable
Securities remain outstanding and a Public Market has not been established with
respect to the Common Stock, C&D Fund IV hereby agrees not to make any sale or
transfer of Common Stock owned by C&D Fund IV which would constitute a
Qualifying Sale, except pursuant to the following provisions of this Section 4:
(a) Procedures for Qualifying Sales. At least 30 days prior to
making any Qualifying Sale, C&D Fund IV will deliver a written notice (the "Sale
Notice") to the Company and the other holders of Registrable Securities. The
Sale Notice will fully disclose the identity of the prospective transferee and
the terms and conditions of the proposed Qualifying Sale, including the number
of shares of Common Stock that the prospective transferee is willing to purchase
and the intended consummation date of such Qualifying Sale. C&D Fund IV agrees
not to consummate any Qualifying Sale until at least 30 days after the related
Sale Notice has been given to each holder of Registrable Securities, unless C&D
Fund IV shall have received a notice from each holder of Registrable Securities
indicating whether or not such holder has elected to participate in such
Qualifying Sale and the number of shares of Common Stock to be sold by each such
holder so electing to participate has been finally determined pursuant hereto
prior to the expiration of such 30-day
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period. Each holder of Registrable Securities may elect to participate in the
contemplated Qualifying Sale by giving written notice to C&D Fund IV and the
Company within 30 days after C&D Fund IV has given the related Sale Notice to
such holder. If a holder of Registrable Securities elects to participate, such
holder will be entitled to sell in the contemplated Qualifying Sale, at the same
price and on the same terms and conditions as set forth in the related Sale
Notice, an amount of Registrable Securities equal to the product of (i) the
quotient determined by dividing (A) the percentage of Registrable Securities
then held by such holder of Registrable Securities so electing to participate by
(B) the aggregate percentage of Registrable Securities represented by the
Registrable Securities then held by C&D Fund IV and all holders of Registrable
Securities so electing to participate and (ii) the number of shares of
Registrable Securities such transferee has agreed to purchase in the
contemplated sale (or in the case of a "Qualifying Sale" within the meaning of
clause (ii) of Section 4(b), the Excess Number of shares which such transferee
has agreed to purchase). If such right to participate in a Qualifying Sale shall
not have been exercised prior to the expiration of the 30-day period, then at
any time during the 90 days following the expiration of the 30-day period,
subject to extension for not more than an additional 60 days to the extent
reasonably required to comply with Applicable Laws in connection with such
purchase, C&D Fund IV may sell to the prospective transferee the number of
shares of Common Stock and at the price and on the terms and conditions
indicated in the Sale Notice. Upon receipt of a Sale Notice, the Company will
provide C&D Fund IV with a current list of holders of Registrable Securities and
their addresses.
(b) Qualifying Sale Defined. The term "Qualifying Sale" shall
mean (i) any sale or transfer of Common Stock proposed to be made by C&D Fund IV
at any time after C&D Fund IV has sold or transferred in the aggregate 5% of the
shares of Class A Common Stock acquired by C&D Fund IV in the Distribution
(excluding any sales or transfers by C&D Fund IV to Management Investors and
Individual Investors, the "Qualifying Number") or (ii) in the event that prior
to the sale or transfer by C&D Fund IV of an aggregate of the Qualifying Number
of shares of Class A Common Stock, C&D Fund IV proposes to sell or transfer a
number of shares of Class A Common Stock which when combined with any prior
sales or transfers of such shares by C&D Fund IV exceeds the Qualifying Number,
the sale or transfer of a number of shares (the "Excess Number") equal to the
excess of (A) the sum of any shares previously sold or transferred by a C&D
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Fund IV and the aggregate number of shares proposed to be sold or transferred in
such contemplated sale, over (B) the Qualifying Number of shares. In determining
whether there is a "Qualifying Sale," equitable adjustments shall be made to
reflect any stock split, stock dividend, stock combination, recapitalization or
similar transaction.
(c) Exclusion from Qualifying Sale. The obligation of C&D
Fund IV and the rights of the holders of Registrable Securities pursuant to this
Section 4 will not apply to any sale or transfer by C&D Fund IV pursuant to a
distribution to the public (whether pursuant to a registered Public Offering or
pursuant to Rule 144 or otherwise (but not pursuant to Rule 144A under the
Securities Act or any successor provision)). Any shares referred to, or covered
by any sale, transfer or distribution referred to, in the preceding sentence
shall not be included in the computation of "Qualifying Sale."
5. Investors' Rights to Purchase Additional Capital Stock.
(a) C&D Sale. If at any time after the date of this Agreement
and prior to the establishment of a Public Market with respect to the Common
Stock, the Company shall propose to issue or sell any additional shares of its
capital stock (or any securities that may be exchanged for or converted into
such capital stock) to C&D Fund IV or any Affiliate of C&D Fund IV (a "C&D
Sale"), the Company shall offer to each holder of Registrable Securities that is
an accredited investor (as such term is defined in Rule 501 of Regulation D
under the Securities Act) the right to purchase that number of additional shares
of the Company's capital stock (or such other security), on the same terms and
conditions as the proposed C&D Sale, such that such holder would have the
opportunity to hold the same percentage of shares of the Company's capital stock
(on a fully diluted basis) after giving effect to the C&D Sale, as such holder
held immediately prior thereto (an "Offer"). Notwithstanding the foregoing,
none of the following transactions shall constitute a C&D Sale: the issuance by
the Company of any shares of its capital stock (or any securities that may be
exchanged for or converted into such capital stock) (A) pursuant to the
transactions described in Section 1, (B) in exchange for Class A Common Stock or
(C) upon conversion of Class B Common Stock.
(b) Offer Procedures. The Company shall make an Offer by
delivering to each holder of Registrable Securities
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at least 30 Business Days' prior written notice of the proposed C&D Sale. Such
notice will identify the class and number of shares or amount of securities to
be issued (the "Offered Securities"), the proposed date of issuance and the
price and other terms of the issuance. Such notice will also include an offer to
sell to each such holder that number of the Offered Securities such that such
holder would have the opportunity to hold the same percentage of shares of the
Company's capital stock (on a fully diluted basis) after giving effect to the
C&D Sale, as such holder held immediately prior thereto (such holder's
"Proportionate Share"), at the same price and on the same other terms as are
proposed for such C&D Sale, which offer by its terms shall remain open for a
period of 15 Business Days from the date of receipt of such notice, provided
that in the event that the Offered Securities are shares of Class B Common
Stock, any holder not required by law to hold non-voting securities of the
Company may purchase such holder's Proportionate Share in shares of Class A
Common Stock. Each such holder shall give notice to the Company of its intention
to accept an Offer prior to the end of the 15-Business Day period of such Offer,
setting forth such portion of the Offered Securities which such holder elects to
purchase. If any holder fails to subscribe for its Proportionate Share of the
Offered Securities, the other subscribing holders shall be entitled to purchase
such Offered Securities as are not subscribed for by such holder in such
proportion of the Offered Securities as they shall have theretofore agreed to
purchase until there are no unmet demands of subscribing holders or all Offered
Securities shall have been subscribed for. The Company shall notify each holder
five Business Days following the expiration of the 15-Business Day period
described above of the amount of Offered Securities which each such holder may
purchase pursuant to the foregoing sentence, and each such holder shall then
have 10 Business Days from the delivery of such notice to indicate such
additional amount, if any, that such holder wishes to purchase. Upon the closing
of the C&D Sale as to which the Company has given notice, such holder shall
purchase from the Company, and the Company shall sell to such holders, the
Offered Securities subscribed for by such holders on the terms specified in the
Offer, which shall be the same terms at which all other persons or entities
acquire such securities in connection with such sale or issuance. In the event
that such holders do not subscribe for all of the Offered Securities, the
Company shall have 30 Business Days from the end of the foregoing 15-Business
Day or 30-Business Day period, whichever is applicable, to sell all or any part
of such Offered Securities as to which such holders have not accepted
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an Offer to any other persons or entities, in all material respects on terms and
conditions that are no more favorable to such other persons or entities or less
favorable to the Company than those set forth in the Offer. Any Offered
Securities not purchased by such holders or other persons or entities in
accordance with this Section 6 may not be sold or otherwise disposed of by the
Company until they are again offered to such holders under the procedures
specified in this Section 6.
6. Miscellaneous.
6.1. (a) Rule 144. If the Company shall have filed a
registration statement pursuant to Section 12 of the Exchange Act or a
registration statement pursuant to the Securities Act relating to any class of
equity securities (other than a registration statement pursuant to a Special
Registration), the Company covenants that it will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Securities and Exchange Commission thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any holder of Registrable Securities, make publicly available such information
as necessary to permit sales pursuant to Rule 144), and will take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell shares of
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144, as such rule may be
amended from time to time, or (b) any successor rule or regulation hereafter
adopted by the Securities and Exchange Commission.
(b) Legend on Stock Certificates. In addition to such other
legends as may be required by the Company's Certificate of Incorporation or any
Stock Subscription Agreement pursuant to which Registrable Securities are
issued, each certificate or certificates representing Registrable Securities
shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ENTITLED TO
THE BENEFITS OF AND ARE BOUND BY THE OBLIGATIONS SET FORTH IN
A REGISTRATION AND PARTICIPATION AGREEMENT, DATED AS OF
AUGUST 31, 1996, AND ANY AMENDMENTS, SUPPLEMENTS OR
MODIFICATIONS THERETO, AMONG THE COMPANY AND CERTAIN STOCK
HOLDERS OF THE COMPANY AND NEITHER THIS CERTIFICATE NOR THE
SHARES REPRESENTED BY IT ARE
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33
ASSIGNABLE OR OTHERWISE TRANSFERABLE EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF SUCH REGISTRATION AND PARTICIPATION
AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
HOLDBACK PROVISIONS CONTAINED IN SECTION 3.4 OF THE
REGISTRATION AND PARTICIPATION AGREEMENT AND IN THE COMPANY'S
CERTIFICATE OF INCORPORATION, WHICH PROVISIONS PROHIBIT ANY
TRANSFER OF SUCH SHARES DURING THE 20 DAYS PRIOR TO AND THE
180 DAYS AFTER THE EFFECTIVE DATE OF ANY REGISTRATION
STATEMENT (SUBJECT TO CERTAIN LIMITED EXCEPTIONS) FILED BY THE
COMPANY FOR ANY OF THE SHARES OF THE COMPANY, WITHOUT REGARD
TO THE APPLICABILITY OF RULE 144 OR RULE 144A UNDER THE
SECURITIES ACT."
The Company agrees that it will not issue new certificates for shares formerly
representing Registrable Securities without a legend unless such shares have
been sold to the public pursuant to an effective registration statement under
the Securities Act or Rule 144.
6.2. Amendments and Waivers. This Agreement may be amended,
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall have
obtained the written consent to such amendment, action or omission to act, of
the holder or holders of at least a majority of the shares of Registrable
Securities. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any consent authorized by this Section 6.2,
whether or not such Registrable Securities shall have been marked to indicate
such consent.
6.3. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election and unless notice is otherwise
given to the Company by the record owner, be treated as the holder of such
Registrable Securities for purposes of any request or other action by any holder
or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
30
34
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
6.4. Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of, or are binding upon the parties hereto other than the Company
shall also be for the benefit of, binding upon and enforceable by any subsequent
holder of any Registrable Securities, subject to the provisions respecting the
minimum numbers or percentages of shares of Registrable Securities required in
order to be entitled to certain rights, or to take certain actions, contained
herein.
6.5. Notices. All notices, requests, demands or other communications
provided for hereunder shall be in writing and shall be deemed to have been duly
given to any party (a) when delivered personally (by courier service or
otherwise), (b) when delivered by telex and confirmed by receipt of the proper
telex answerback, (c) five days after being mailed by first class mail, postage
prepaid (registered or certified mail, return receipt requested), (d) when
receipt acknowledged, if telecopied, or (e) the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery, in each case to the applicable address set forth beneath its name on
the schedules hereto, or to such other address as such party may have designated
to the Company in writing, or if to any other holder of Registrable Securities
at the address of such holder in the stock record books of the Company, and if
to the Company or C&D Fund IV to the following addresses:
(i) if to the Company, to:
MCM Group, Inc.
c/x XxXxxxxx, Xxxxxxxx & Xxxxxx, Inc.
One Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
(ii) if to C&D Fund IV, to:
The Xxxxxxx & Dubilier Private Equity
Fund IV Limited Partnership
31
35
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx & Dubilier Associates IV
Limited Partnership
Attention: Xxxxxx X. Xxxx, III
or at such other address or addresses as the Company or C&D Fund IV, as the case
may be, may have designated in writing to each holder of Registrable Securities
at the time outstanding. Copies of any notice or other communication given under
the Agreement shall also be given to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Any party may give any notice or other communication in connection herewith
using any other means (including, but not limited to, personal delivery,
messenger service, facsimile, telex or ordinary mail), but no such notice or
other communication shall be deemed to have been duly given unless and until it
is actually received by the individual for whom it is intended.
6.6. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities by this Agreement.
6.7. Remedies; Attorneys' Fees. Each holder of Registrable Securities,
in addition to being entitled to exercise all rights provided herein or granted
by law, including recovery of damages, will be entitled to specific performance
of its rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of any provision of this Agreement and hereby agrees to waive the defense
in any
32
36
action for specific performance that a remedy at law would be adequate. In any
action or proceeding brought to enforce any provision of this Agreement, the
successful party shall be entitled to recover reasonable attorneys' fees in
addition to its costs and expenses and other available remedy.
6.8. Stock Splits, etc. Each party hereto agrees that it will vote to
effect a stock split (forward or reverse, as the case may be) with respect to
any Registrable Securities in connection with any registration of such
Registrable Securities hereunder, or otherwise, if the managing underwriter
shall advise the Company in writing (or, in connection with an offering that is
not underwritten, if an investment banker shall advise the Company in writing)
that in their or its opinion such a stock split would facilitate or increase the
likelihood of success of the offering. Each party hereto agrees that any number
of shares of Common Stock referred to in this Agreement shall be equitably
adjusted to reflect any stock split, stock dividend, stock combination,
recapitalization or similar transaction.
6.9. Term. This Agreement shall be effective as of the date hereof and
shall continue in effect thereafter until the earliest of (a) its termination by
the consent of the parties hereto or their respective successors in interest,
(b) the date on which no Registrable Securities remain outstanding and (c) the
dissolution, liquidation or winding up of the Company.
6.10. Severability. If any provision of this Agreement is inoperative
or unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative, or unenforceable to any extent whatsoever. The
invalidity of any one or more phrases, sentences, clauses, Sections or sub-
sections of this Agreement shall not affect the remaining portions of this
Agreement.
6.11. Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
6.12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which
together constitute one and the same instrument.
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37
6.13. Governing Law. This Agreement shall be governed in all respects,
including, but not limited to, as to validity, interpretation and effect, by the
internal laws of the State of New York without regard to principles of
conflicts of law.
6.14. No Third Party Beneficiaries. Except as provided in Sections
1(g), 3.7 and 6.4, nothing in this Agreement shall confer any rights upon any
Person other than the parties hereto and each such party's respective heirs,
successors and permitted assigns.
6.15. Consent to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby (and agrees not to
commence any such suit, action or proceeding except in such courts). Each party
further agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above shall be
effective service of process for any such suit, action or proceeding. Each party
irrevocably and unconditionally waives any objection to the laying of venue of
any such suit, action or proceeding in (i) the Supreme Court of the State of New
York, New York County, and (ii) the United States District Court for the
Southern District of New York, that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum.
6.16. Waiver of Jury Trial. Each party hereby waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in
respect of any suit, action or proceeding arising out of this Agreement or any
transaction contemplated hereby. Each party (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it and the other
parties have been induced to enter into the Agreement by, among other things,
the mutual waivers and certifications in this Section 6.16.
6.17. Entire Agreement. This Agreement constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
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38
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
MCM GROUP, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: President and Chief Executive
Officer
THE XXXXXXX & DUBILIER PRIVATE
EQUITY FUND IV LIMITED PARTNERSHIP
By: Xxxxxxx & Dubilier Associates IV
Limited Partnership,
the general partner
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
a General Partner
THE PARTIES NAMED
ON SCHEDULE A HERETO
By:
----------------------------------------
Name:
Title: Attorney-in-Fact
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39
SCHEDULE A
INVESTORS
Xxxxxx X. Xxxx
Xxxxxxxx X. Xxxxxxx
B. Xxxxxx Xxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxxxxx Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Cloud
Xxxxxxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxx
C&D Fund IV
Xxxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx XxXxxx
Xxxxxx X. XxXxxxx
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxx
Xxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
40
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxx & Co.
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxx
Xxxxxxx X. Friday
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxx X. Xxxxx
Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxx Xxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxx
Xxxx Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxx
Xxxxxxxx Xxxxxx
Xxxx X. Xxxxx
Xxx Xxxxx Xxxxxxxxxxxx
Xxxxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
41
Xxxxxx X. Xxxxx
S. Xxxxxxx Xxxxx, III
Xxxx X. Xxxxx
Xxxx X. Xxxxxxx
xxxxxx X. Xxxxx
Xxxxxx Xxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
Xxxx X. XxXxxxxxx
Xxxx X. XxXxxxx
Xxxxxx X. XxXxxxxxx
Xxxx X. XxXxxxxx
Xxxx X. XxXxxx
Xxxxxxx X. XxXxxxxxxx
Xxxxxx XxXxxxx
Xxxxxx X. Xxxxxxx
xxxxx X. Xxxxxx
Xxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxxxxx Xxxxxx
Xxxx Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxx
Xxxx X. New
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. X'Xxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxxx
Xxxxxx Xxxx, Jr.
42
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxx X. Xxxxxx
Trust for Xxxxxxx Xxxx Xxxxxx
Trust for Xxxxxxx Xxxxx Xxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxx
Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxx
Xxxxx X. Xxxx
Xxxxxxxx Xxxxx
Xxxxx X. Xxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxx
Xxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx Xxxxx
Xxxx X. Xxxxx
Xxxxxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Travelers Indemnity Co.
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxxx
X. Xxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxxxx X. Xxxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxx, III
Xxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
Xxx X. Xxxxxxx
Xxxx X. Xxxxxxxxx, Xx.
