EXHIBIT 10.11
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 25, 2000 (this
"Agreement"), by and among GOLDEN BOOKS PUBLISHING COMPANY, INC., a Delaware
corporation ("Publishing"), GOLDEN BOOKS FAMILY ENTERTAINMENT, INC., a Delaware
Corporation ("Parent"), and the Holders (as hereinafter defined) of Registrable
Securities (as hereinafter defined) who are parties to this Agreement. For
purposes of this Agreement, the term "Company" refers to (i) Publishing as it
relates to the registration of Senior Notes, (ii) Parent, as it relates to the
registration of Common Stock and Warrants and, (iii) each of Publishing and
Parent, on a joint and several basis, for purposes of Section 9 of this
Agreement.
This Agreement is being entered into in accordance with the Plan (as
hereinafter defined) in connection with the acquisition of Securities (as
hereinafter defined) by certain holders named on the signature page to this
Agreement pursuant to the Plan. To induce the holders of Registrable Securities
(as hereinafter defined) to vote in favor of the Plan, the Company has
undertaken to register the Registrable Securities under the Act (as hereinafter
defined) and to take certain other actions with respect to the Registrable
Securities. This Agreement sets forth the terms and conditions of such
undertaking.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, and unless the context requires
a different meaning, the following terms have the meanings indicated:
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated hereunder.
"APPROVED UNDERWRITER" has the meaning assigned to such term in Section
4(b).
"APPROVED UNDERWRITER AMOUNT" has the meaning assigned to such term in
Section 4(a).
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized or required by law
or executive order to close.
"COMMON STOCK" means the Common Stock, $0.01 par value, of Parent, or any
other capital stock of Parent into which such stock is reclassified or
reconstituted.
"COMPANY UNDERWRITER" has the meaning assigned to such term in Section
5(a).
"DISADVANTAGEOUS CONDITION" has the meaning assigned to such term in
Section 3(f).
"EFFECTIVE DATE" means the effective date of the Plan pursuant to the terms
thereof.
"EFFECTIVENESS PERIOD" has the meaning assigned to such term in Section
3(d).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC thereunder.
"HOLDER" has the meaning assigned to such term in Section 2(b).
"INDEMNIFIED PARTY" has the meaning assigned to such term in Section 9(c).
"INDEMNIFYING PARTY" has the meaning assigned to such term in Section 9(c).
"INITIAL SHELF REGISTRATION" has the meaning assigned to such term in
Section 3(a) hereof.
"INITIATING HOLDERS" has the meaning assigned to such term in Section 4(a).
"INSPECTOR" has the meaning assigned to such term in Section 7(a)(ix).
"NASD" has the meaning assigned to such term in Section 7(a)(xv).
"NASDAQ" has the meaning assigned to such term in Section 7(a)(xvii).
"PERSON" means any individual, firm, corporation, company, partnership,
trust, incorporated or unincorporated association, limited liability company,
joint venture, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind, and shall include any
successor (by merger or otherwise) of any such entity.
"PLAN" means the Joint Plan of Reorganization of Golden Books Family
Entertainment, Inc., et al., under Chapter 11 of the United States Bankruptcy
Code filed with the United States Bankruptcy Court for the Southern District of
New York and confirmed by such court on September 24, 1999, as the same may be
amended, modified or supplemented from time to time in accordance with the terms
thereof.
"REGISTRABLE SECURITIES" means, subject to Section 2(a), all securities in
each of the following: (1) a class comprising (a) shares of Common Stock held as
of the date hereof by the stockholders party hereto and (b) securities issued or
issuable in respect of shares of Common Stock issued, issuable or held pursuant
to clause (1)(a) above by way of a dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise; (2) a class comprising (a) Senior Notes held as of
the date hereof by the noteholders party hereto and (b) securities issued or
issuable in respect of the Senior Notes issued, issuable or held pursuant to
clause (2)(a) above by way of interest payments or otherwise; and (3) a class
comprising (a) Warrants held as of the date hereof by the warrantholders party
hereto and (b) securities issued or issuable in respect of the Warrant issued,
issuable or held pursuant to clause (3)(a) above by way of exercise or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise.
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"REGISTRATION EXPENSES" has the meaning assigned to such term in Section 8.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company filed with the SEC in the appropriate form pursuant to the Act which
covers any of the shares of Common Stock, the Senior Notes, the Warrants and any
other Registrable Securities pursuant to the provisions of this Agreement and
all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.
"SEC" means the Securities and Exchange Commission.
"SENIOR NOTES" means the 10.75% Senior Secured Notes due 2004 of
Publishing.
"SUBSEQUENT SHELF REGISTRATION" has the meaning assigned to such term in
Section 3(b).
"TOTAL SECURITIES" has the meaning assigned to such term in Section 5(a).
"WARRANTS" means the Warrants to purchase shares of Common Stock of the
Company at an exercise price of $23.03 per share of Common Stock.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) REGISTRABLE SECURITIES. For the purposes of this Agreement, Registrable
Securities will cease to be Registrable Securities when (i) a registration
statement covering such Registrable Securities has been declared effective under
the Act by the SEC and such Registrable Securities have been disposed of
pursuant to such effective registration statement, (ii) such securities have
been sold to the public pursuant to, or are eligible for sale to the public
without volume or manner of sale restrictions under, Rule 144(k) (or any similar
provision then in force, but not Rule 144A) promulgated under the Act, (iii)
such securities shall have been otherwise sold or transferred pursuant to an
exemption from the registration requirements under the Act and new certificates
for such securities not bearing a legend restricting further transfer shall have
been delivered by the Company or its transfer agent and subsequent disposition
of such securities shall not require registration or qualification under the Act
or any similar state law then in force, or (iv) all such Securities shall cease
to be outstanding
(b) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a holder of
Registrable Securities (a "HOLDER") whenever such Person (i) is a party to this
Agreement (or a permitted transferee thereof who has agreed in writing to be
bound by the terms of this Agreement) and (ii) owns Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two or
more persons with respect to the same Registrable Securities, the Company may
act upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities.
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3. SHELF REGISTRATION UNDER THE ACT.
(a) INITIAL SHELF REGISTRATION. The Company shall (i) prepare and cause to
be filed with the SEC as soon as practicable, but not later than 75 days after
the Effective Date a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 under the Act (the "INITIAL SHELF
REGISTRATION") covering all of the Registrable Securities and providing for the
sale of the Registrable Securities by the Holders thereof and (ii) use its
reasonable best efforts to have such Initial Shelf Registration declared
effective by the SEC as promptly as practicable thereafter.
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Company determines to terminate
the effectiveness of the Initial Shelf Registration prior to the end of the
Effectiveness Period, then, subject to the provisions of this Agreement, prior
to such termination the Company shall file, and shall use its reasonable best
efforts to cause the SEC to declare effective, a subsequent Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
under the Act (a "SUBSEQUENT SHELF REGISTRATION") covering all of the
Registrable Securities then outstanding. The Subsequent Shelf Registration shall
be filed by the Company at such time, subject to the provisions of this
Agreement, prior to the termination of the effectiveness of the Initial Shelf
Registration which is reasonably calculated to cause the Subsequent Shelf
Registration to become effective on or prior to the date on which the
effectiveness of the Initial Shelf Registration terminates.
(c) AMENDMENTS TO INITIAL SHELF REGISTRATION OR SUBSEQUENT SHELF
REGISTRATIONS. If the Initial Shelf Registration (except as provided in Section
3(b)) or any Subsequent Shelf Registration ceases to be effective for any reason
at any time during the Effectiveness Period for any reason (other than because
of the sale of all of the Registrable Securities covered thereby or Registrable
Securities cease to be outstanding), the Company shall use its reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof or take such other actions as may be necessary to
reinstate the effectiveness thereof, and in any event shall, within 60 days of
such cessation of effectiveness, either (i) amend such Initial Shelf
Registration or Subsequent Shelf Registration in a manner reasonably calculated
to obtain the withdrawal of the order suspending the effectiveness thereof, or
(ii) file a Subsequent Shelf Registration covering all Registrable Securities
then outstanding. (Each of the Initial Shelf Registration and any Subsequent
Shelf Registration filed pursuant to paragraph 3(b) or this paragraph 3(c) are
referred to individually herein as a "Shelf Registration" and collectively as
the "Shelf Registrations").
(d) EFFECTIVENESS PERIOD. Subject to Section 3(f) hereof, the Company shall
use its reasonable best efforts to keep the Shelf Registration (including the
Initial Shelf Registration and/or any Subsequent Shelf Registration)
continuously effective under the Act from the date on which the Initial Shelf
Registration was declared effective by the SEC until such time when all
Registrable Securities covered by the Initial Shelf Registration have been sold
(the "Effectiveness Period"). If a Subsequent Shelf Registration is filed,
pursuant to Section 3(b) or 3(c) hereof, the Company shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
as soon as practicable after such filing and to keep such Registration Statement
continuously effective for a period after such effectiveness equal to the
Effectiveness Period.
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(e) SUPPLEMENTS AND AMENDMENTS. The Company shall file one or more
supplements or amendments to the Shelf Registration and the prospectus used in
connection therewith if (i) required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration, (ii)
otherwise required by the SEC, or (iii) requested to do so in writing by any
Holder of Registrable Securities to the extent necessary to include such Holder
as a selling securityholder in such registration statement.
(f) BLACKOUT PERIODS. With respect to a Shelf Registration filed or to be
filed pursuant to Section 3 hereof, if a majority of the Board of Directors of
the Company shall determine, in its good faith reasonable judgment, that to
maintain the continued effectiveness of such Shelf Registration or to permit
such Shelf Registration to become effective (or if a Subsequent Shelf
Registration is otherwise required to be filed, to file such Shelf Registration)
would be materially adverse to the Company's financial condition, business or
operations or may require a disclosure that is not in the Company's best
interests and that would be materially adverse to the Company (a
"Disadvantageous Condition") in light of the existence, or in anticipation, of
(i) any acquisition or financing activity involving the Company, or any
subsidiary of the Company, including a proposed public offering of debt or
equity securities, (ii) an undisclosed material event, the public disclosure of
which would have a material adverse effect on the Company, (iii) a proposed
material transaction involving the Company or a substantial amount of its
assets, or (iv) any other circumstance or condition the disclosure of which
would materially disadvantage the Company), and the existence of which would
render a Subsequent Shelf Registration to be filed, or renders any Shelf
Registration then filed or effective, inadequate as failing to include material
information, then the Company may, until Such Disadvantageous Condition no
longer exists (but not with respect to more than one occasion or more than 90
days in the aggregate during any continuous 12-month period) cause such Shelf
Registration to be withdrawn and/or cause the right of Holders to make
dispositions of Registrable Securities pursuant to such Shelf Registration to be
suspended, or, in the case of a Subsequent Shelf Registration that has not yet
been filed, elect not to file Such Subsequent Shelf Registration; PROVIDED,
HOWEVER, that the Company may not take any such action until the elapse of 120
days following the commencement of the Effectiveness Period; and PROVIDED,
FURTHER, that the Company may not take any such action unless it simultaneously
takes similar action with respect to any other Registration Statements of the
Company that are then effective or that are contemplated or required to be
filed. If the Company determines to take any action pursuant to the preceding
sentence, the Company shall deliver a notice to each Holder of Registrable
Securities covered or to be covered under such Shelf Registration, which
indicates that the Shelf Registration is no longer effective or usable or will
not be filed. Upon the receipt of any such notice, such Holders shall forthwith
discontinue any sale of Registrable Securities pursuant to such Shelf
Registration and any use of the prospectus contained in such Shelf Registration.
If any Disadvantageous Condition shall cease to exist, the Company shall
promptly notify any Holders who shall have ceased selling Registrable Securities
pursuant to an effective Shelf Registration as a result of such Disadvantageous
Condition, indicating such cessation and disclosing in reasonable detail the
nature and outcome of such Disadvantageous Condition. The Company shall, if any
Shelf Registration required to be filed or maintained under this Agreement has
been withdrawn or not filed, file promptly, at such time as it in good faith
reasonably deems the earliest practicable time, and shall use its reasonable
best efforts to cause the SEC to declare effective, a new Shelf Registration
covering the Registrable
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Securities that were covered by such withdrawn Shelf Registration or to be
covered by such unfiled Shelf Registration.
4. UNDERWRITTEN OFFERINGS.
(a) REQUEST FOR UNDERWRITING OFFERINGS. At any time, if one or more Holders
holding at least 25% of the Registrable Securities covered by any Initial Shelf
Registration or any Subsequent Shelf Registration ("INITIATING HOLDERS") so
elect, an offering of Registrable Securities pursuant to such Initial Shelf
Registration or Subsequent Shelf Registration may be effected on no more than
three (3) occasions in the form of a firm commitment underwritten offering and
the managing underwriter or underwriters selected for such offering shall be the
Approved Underwriter selected in accordance with Section 4(b). Upon the receipt
of a written request for an underwritten offering, the Company shall promptly
take such steps as are necessary or appropriate to prepare for such offering.
Promptly, but in no event later than ten (10) days after the receipt of such
written request for an underwritten offering, the Company shall give written
notice thereof to all other Holders and include in such underwriting all
Registrable Securities held by any Holder from whom the Company has received a
written request for inclusion therein. In such event, the Company shall use its
reasonable best efforts to include all Registrable Securities of such class
requested by the Holders to be included in such offering. Such offering shall
include any securities requested by the Company to be included in such
registration to the extent permitted herein. Notwithstanding the foregoing
sentence, if the Approved Underwriter advises the Company and the Holders in
writing that, in its opinion, the aggregate amount of such Registrable
Securities requested to be included by the Holders in such offering (including
those securities requested by the Company to be included in such underwritten
offering) is sufficiently large to have an adverse effect on the success of such
offering, then the Company shall include in such registration only the aggregate
amount of Registrable Securities that in the opinion of the Approved Underwriter
may be sold without any such adverse effect on the success of such offering (the
"APPROVED UNDERWRITER AMOUNT"), and (i) if the number of Registrable Securities
to be included in such registration is greater than the Approved Underwriter
Amount, then each Holder shall be entitled to have included in such registration
Registrable Securities of such class equal to its pro rata portion of the
Approved Underwriter Amount, based on the amounts of Registrable Securities of
such class sought to be sold by the Holders in their requests for participation
in the underwritten offering, and the Company and any Person who is not a Holder
shall not be entitled to include any securities therein, and (ii) to the extent
that the number of Registrable Securities of such class to be included by the
Holders is less than the Approved Underwriter Amount, securities that the
Company and any Person who is not a Holder proposes to register may also be
included with such priority as the Company may in its discretion consider
appropriate.
If, as a result of the pro-ration provision of this Section 4(a), any
Holder shall not be entitled to include in a registration all Registrable
Securities of such class that such Holder has requested to be included, such
Holder may elect to withdraw its request to include Registrable Securities of
such class in such registration or may reduce the number requested to be
included; provided, however, that (i) such request must be made in writing prior
to the earlier of the execution of the underwriting agreement or the execution
of the custody agreement with respect to such registration and (ii) such
withdrawal or reduction shall be irrevocable. Notwithstanding the foregoing, if
by the withdrawal
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of such Registrable Securities a greater number of Registrable Securities held
by other Holders may be included in such underwriting (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
participating Holders who have included Registrable Securities in the
underwritten offering the right to include additional Registrable Securities in
the same proportion used in determining the underwriter limitation in this
Section 4(a).
The Company shall cooperate with the Holders in order to facilitate
communications among such Holders solely for the purpose of obtaining the
consent of sufficient Holders to request an underwritten offering pursuant to
this Section 4, including, without limitation, by providing a list of
stockholders of the Company with their respective ownership of Registrable
Securities and contact information, which shall be used solely for purposes of
this Agreement.
(b) SELECTION OF UNDERWRITERS. If any offering pursuant to an Initial Shelf
Registration or a Subsequent Shelf Registration is in the form of an
underwritten offering, the majority of the Initiating Holders shall (i) select
and obtain an investment banking firm of national reputation to act as the
managing underwriter of the offering (the "APPROVED UNDERWRITER"); provided,
that such underwriter shall be reasonably satisfactory to the Company, and (ii)
the Company and the Holders shall enter into an underwriting agreement in
customary form reasonably satisfactory to the Company with the Approved
Underwriter.
(c) EFFECTIVE UNDERWRITTEN OFFERING. An underwritten offering requested by
the Holders pursuant to Section 4(a) hereof shall not count as one of the three
(3) underwritten offerings to which the Holders are entitled under Section 4(a)
unless (i) all of the Registrable Securities requested to be included in the
underwritten offering are so included and sold pursuant to such underwritten
offering or (ii) Registrable Securities in an amount equal to the Approved
Underwriter Amount is included and sold pursuant to such underwritten offering;
provided that the Approved Underwriter Amount include not less than 75% of all
Registrable Securities requested to be included in such underwritten offering.
5. PIGGY-BACK REGISTRATION
(a) PIGGY-BACK RIGHTS. If the Company proposes to file a registration
statement under the Act with respect to an offering by the Company for its own
account of any class of security (other than a registration statement on Form
S-4 or S-8 or any successor form) under the Act, then the Company shall give
written notice of such proposed filing to each of the Holders, which notice
shall be delivered as soon as practicable (but in no event fewer than 15
business days before the anticipated filing date or 10 business days if the
Company is subject to the filing requirements of the Exchange Act and eligible
to use Form S-3 (or F-3) under the Act) and shall describe in reasonable detail
the proposed registration and intended method of distribution and offer such
Holders the opportunity to register the number of Registrable Securities as each
such Holder may request. The Company shall use its reasonable best efforts to
permit the Holders who have requested to participate in the registration for
such offering within twenty (20) days of the delivery of notice provided for in
the preceding sentence to include such Registrable Securities in such offering
on the same terms and conditions as the securities of the Company included
therein. Notwithstanding the foregoing, if such registration involves an
underwritten offering and the managing underwriters or underwriters (the
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"COMPANY UNDERWRITER") shall advise the Holders of Registrable Securities in
writing that, in its opinion, the total amount of securities requested to be
included in such offering (the "TOTAL SECURITIES") is sufficiently large so as
to have an adverse effect on the success of the distribution of the Total
Securities, then the Company shall include in such registration, first, all
securities that the Company proposed to register for its own account, second,
all securities requested to be registered by the Holders, pro rata among such
Holders (based upon the number of Registrable Securities which each such Holder
requested to be included in such registration), and third, all other securities
proposed to be registered, in each case, to the extent of the number of
securities which the Company is so advised can be sold in (or during the time
of) such offering without having such adverse effect.
(b) PRIORITY OF REGISTRATIONS. If the Company proposes to register
securities for its own account or for the account of any selling stockholder at
a time when Holders have requested an underwritten offering pursuant to Section
4 hereof, then the underwritten offering requested pursuant to Section 4 hereof
shall be given priority.
(c) EXPENSES. The Company shall bear all Registration Expenses in
connection with any registration pursuant to this Section 5 in accordance with
Section 8.
(d) CONDITIONS AND LIMITATIONS ON PIGGYBACK REGISTRATIONS. 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 or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to all Holders of
Registrable Securities and, (i) in the case of a determination not to register,
shall be relieved of its obligation to register the Registrable Securities in
connection with such abandoned registration and (ii) in the case of a
determination to delay the registration of its securities, shall be permitted to
delay the registration of such Registrable Securities for the same period as the
delay in registering such other securities.
Any Holder shall have the right to withdraw its request for inclusion of
its Registrable Securities in any registration statement pursuant to this
Section 5 by giving written notice to the Company of its request to withdraw;
PROVIDED, HOWEVER, that (i) such request must be made in writing prior to the
earlier of the execution of the underwriting agreement or the execution of the
custody agreement with respect to such registration and (ii) such withdrawal
shall be irrevocable and, after making such withdrawal, a Holder shall no longer
have any right to include Registrable Securities in the registration as to which
such withdrawal was made.
6. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDERS. Each Holder whose Registrable
Securities are covered by a Registration Statement filed pursuant to Section 4
or Section 5 agrees not to effect any public sale or distribution of any
Registrable Securities being registered or of any securities convertible into or
exchangeable or exercisable for such Registrable Securities, including a sale
pursuant to Rule 144 under the Act, during a period of not more than one hundred
and twenty (120 days (which period, in any case, shall not exceed the applicable
period under Section 6(b)) commencing on the effective date of such piggyback
registration or underwritten offering pursuant
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to Section 4 hereof (except as part of such registration) (the "Lock-Up
Period"), as may be requested by the Approved Underwriter or the Company
Underwriter, in the case of an underwritten public offering; PROVIDED, HOWEVER,
that if any other holder of securities of the Company shall be subject to a
shorter period, then the Lock-Up Period shall be such shorter period. Each
Holder also agrees that during the Lock-Up Period, it shall not, to the extent
requested by the Company and such underwriter, directly or indirectly sell,
offer to sell, contract to sell (including, without limitation, any short sale),
grant any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any Registrable Securities held by it at
any time during such period (except Registrable Securities included in such
registration).
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company agrees not to
effect any public sale or distribution of any Registrable Securities for its own
account (except pursuant to registrations on Form S-4 or S-8 or any successor
form under the Act) during a period of not more than ninety (90) days commencing
on the effective date of any registration statement in which the Holders are
participating, as may be reasonably requested by the Approved Underwriter or the
Company Underwriter (except for securities being sold by the Company for its own
account under such registration statement).
7. REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY. Whenever registration of Registrable
Securities is required pursuant to Section 3, 4 or 5 of this Agreement, the
Company shall use its reasonable best efforts to effect the registration and
sale of such Registrable Securities in accordance with the intended method of
distribution thereof as quickly as practicable, and in connection with any such
request, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC (in any event not later than ninety
(90) Days after receipt of a request to file a registration statement with
respect to Registrable Securities, or with respect to the Initial Shelf
Registration not later than sixty (60) days after the Effective Date) a
registration statement on any form on which the Company then qualifies, which
counsel for the Company shall deem appropriate and pursuant to which such
offering may be made in accordance with the intended method of distribution
thereof (except that the registration statement shall contain such information
required to be included in a registration statement on Form S-1 as may
reasonably be requested for marketing or other purposes by the Approved
Underwriter or the Company Underwriter), and use its reasonable best efforts to
cause any Shelf Registration requested hereunder to become effective as soon as
reasonably practicable after the initial filing thereof (and in any event not
later than seventy-five (75) days thereafter), subject to the provisions of
Section 4(f) and Section 5(d) of this Agreement;
(ii) notify each seller of Registrable Securities under any
registration statement of any stop order issued or threatened by the SEC and
take all reasonable action required to prevent the entry of such stop order or
to remove it if entered;
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(iii) prepare and file with the SEC such amendments, including
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period required hereunder; cause the related prospectus to be supplemented by
any required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) promulgated under the Act;
and comply with the provisions of the Act and the Exchange Act with respect to
the disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement as so amended or in
such prospectus as so supplemented;
(iv) as soon as reasonably possible, furnish to each seller of
Registrable Securities to be included in a registration statement, prior to
filing a registration statement or any supplement or amendment thereto, copies
of such registration statement, supplement or amendment as it is proposed to be
filed, and after such filing such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as each such
seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(v) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Securities may request, and to
continue such qualification in effect in each such jurisdiction for as long as
is permissible pursuant to the laws of such jurisdiction, or for as long, as any
such seller requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which may be
reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; provided, however, that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 7(a)(v), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in any
such jurisdiction;
(vi) use its reasonable best efforts to obtain all other approvals,
consents, exemptions or authorizations from such governmental agencies or
authorities as may be necessary to enable the sellers of such Registrable
Securities to consummate the disposition of such Registrable Securities;
(vii) notify each seller of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the Act upon
discovery that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made, and the Company shall promptly
prepare a supplement or amendment to such prospectus so that, after delivery of
such supplement or amendment to the purchasers of such Registrable Securities,
such prospectus, as so amended or supplemented, shall not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or
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necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(viii) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as may be reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(ix) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any seller or underwriter (each, an "Inspector" and, collectively, the
"INSPECTORS"), all financial and other books and records, pertinent corporate
documents and properties of the Company and any subsidiaries thereof as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility under the Act, and cause the Company's and any subsidiaries'
officers, directors and employees, and counsel to the Company and the
independent public accountants of the Company, to supply all information
reasonably requested by any such Inspector in connection with such registration
statement;
(x) if requested by any underwriter of Registrable Securities,
obtain a "cold comfort" letter from the Company's independent public accountants
in customary form and covering such matters of the type customarily covered by
"cold comfort" letters, as the managing underwriter may reasonably request;
(xi) if requested by any underwriter of Registrable Securities,
furnish on the date such securities are delivered to the underwriters for sale
pursuant to such registration, an opinion, dated such date, of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters, covering such legal matters with respect to the registration in
respect of which such opinion is being given as such underwriter may reasonably
request and as are customarily included in such opinions;
(xii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than fifteen
(15) months after the effective date of the registration statement, an earnings
statement covering a period of twelve (12) months beginning after the effective
date of the registration statement, in a manner which satisfies the provisions
of Section 11(a) of the Act and Rule 158 thereunder;
(xiii) keep a single representative of the sellers of each class of
Registrable Securities (appointed by the Holders of a majority of the respective
classes of Registrable Securities in the registration) advised as to the
initiation and progress of any registration under Section 3, 4 or 5 hereunder;
(xiv) provide officers' certificates and other customary closing
documents;
11
(xv) cooperate with each seller of Registrable Securities and
each underwriter participating in the disposition of such Registrable Securities
and underwriters' counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD");
(xvi) cause appropriate officers as are requested by an Approved
Underwriter or a Company Underwriter to participate in a "road show" or similar
marketing effort being conducted by such underwriter with respect to an
underwritten offering pursuant to a Shelf Registration or underwritten piggyback
registration including Registrable Securities;
(xvii) use its reasonable best efforts to cause all such Registrable
Securities (other than the Warrants) to be listed on each securities exchange on
which similar securities issued by the Company are then listed and, with respect
to Registrable Securities constituting Common Stock, if no such securities are
so listed, to use its reasonable best efforts to cause such Registrable
Securities to be listed on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq Stock Market ("NASDAQ") and, if listed on Nasdaq, use its
reasonable best efforts to (A) secure designation of all such Registrable
Securities as a Nasdaq "national market system security" within the meaning of
Rule 11 Aa2-1 under the Exchange Act and (B) cause such Registrable Securities
to be listed on the Nasdaq National Market or, failing that, to secure Nasdaq
authorization for such Registrable Securities; and
(xviii) use its reasonable best efforts to take all other actions
necessary to effect the registration of the Registrable Securities contemplated
hereby.
(b) SELLER INFORMATION. The Company may require as a condition precedent of
the Company's obligations tinder this Section 7 that each seller of Registrable
Securities as to which any registration is being effected furnish to the Company
such information regarding such seller and the distribution of such Registrable
Securities as the Company may from time to time reasonably request in writing.
(c) NOTICE TO DISCONTINUE. Each Holder whose Registrable Securities are
covered by a Registration Statement filed pursuant to Sections 3, 4 or 5 agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 7(a)(vii), such Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
7(a)(vii) and, if so directed by the Company in the case of an event described
in Section 7(a)(vii), such Holder shall deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Securities which is
current at the time of receipt of such notice. If the Company shall give any
such notice, the Company shall extend the period during which such registration
statement shall be maintained effective pursuant to this Agreement (including,
without limitation, the period referred to in Section 7(a)(ii) by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 7(a)(vii) to and including the date when the Holder shall
have received the copies of the
12
supplemented or amended prospectus contemplated by, and meeting the requirements
of, Section 7(a)(vii).
8. REGISTRATION EXPENSES. The Company shall pay all of the expenses (other
than underwriting discounts and commissions) arising from or incident to the
performance of, or compliance with, this Agreement, including, without
limitation, (a) SEC, stock exchange and NASD registration and filing fees, (b)
all fees and expenses incurred in connection with complying with securities or
blue sky laws (including, without limitation, reasonable fees, charges and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (c) all printing, messenger and delivery expenses, (d)
the fees, charges and disbursements of counsel to the Company and of its
independent public accountants and any other accounting and legal fees, charges
and expenses incurred by the Company (including, without limitation, any
expenses arising from any special audits required in connection with any
registration) and (e) the reasonable fees, charges and disbursements of any
special experts retained by the Company in connection with any registration
pursuant to the terms of this Agreement, regardless of whether the registration
statement filed in connection with such registration is declared effective. The
Company shall also pay the reasonable fees, charges and disbursements of a
single counsel to all of the Holders participating in any requested underwritten
offering pursuant to Section 4 hereof. All of the expenses described in this
Section 8 are referred to in this Agreement as "REGISTRATION EXPENSES".
Notwithstanding the foregoing provisions of this Section 8, in connection with
any registration or underwritten offering hereunder, each Holder of Registrable
Securities being registered shall pay all underwriting discounts and
commissions, all expenses of counsel (except as set forth in the preceding
sentence) and experts retained by such Holder, and any capital gains, income or
transfer taxes, if any, attributable to the sale of such Registrable Securities
(pro rata in the case of payments of discounts and commissions in accordance
with the number of shares sold in the offering).
9. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless to the full extent permitted by law each Holder, its directors,
officers, partners, employees, advisors and agents, and each Person who controls
(within the meaning of the Act or the Exchange Act) such Holder, from and
against any and all losses, claims, damages, expenses (including, without
limitation, reasonable costs of investigation and fees, disbursements and other
charges of counsel) or other liabilities resulting from or arising out of or
based upon any untrue, or alleged untrue, statement of a material fact contained
in any registration statement, prospectus or preliminary prospectus (as amended
or supplemented) or any document incorporated by reference in any of the
foregoing or resulting from or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of a prospectus, in
light of the circumstances under which they were made), not misleading, except
insofar as the same are caused by or contained in any material information
furnished in writing to the Company by such Holder expressly for use therein.
The Company shall also indemnify any underwriters of the Registrable Securities,
their officers, directors and employees, and each Person who controls any such
underwriter (within the meaning of the Act and the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Holders of
Registrable Securities.
13
(b) INDEMNIFICATION BY HOLDERS. In connection with any proposed
registration in which a Holder is participating pursuant to Section 3, 4 or 5
hereof, each such Holder shall furnish to the Company in writing such
information with respect to such Holder as the Company may reasonably request or
as may be required by law for use in connection with any registration statement
or prospectus or preliminary prospectus to be used in connection with such
registration and each Holder agrees to indemnify and hold harmless the Company,
any underwriter retained by the Company and their respective directors,
officers, employees and each Person who controls (within the meaning of the Act
and the Exchange Act) the Company or such underwriter to the same extent as the
foregoing indemnity from the Company to the Holders (subject to the exceptions
set forth in the foregoing indemnity, the proviso to this sentence and
applicable law), but only with respect to any such information furnished in
writing by such Holder expressly for use therein; provided, however, that the
liability of any Holder under this Section 9(b) shall be limited to the amount
of the net proceeds received by such Holder in the offering giving rise to such
liability.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder (the "INDEMNIFIED PARTY") agrees to give prompt
written notice to the indemnifying party (the "INDEMNIFYING PARTY") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided that, the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that it may have to the Indemnified Party hereunder unless such Indemnifying
Party is materially prejudiced by such failure. If notice of commencement of any
such action is given to the Indemnifying Party as above provided, the
Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying Party similarly notified, to assume
the defense of such action at its own expense, with counsel chosen by it and
reasonably satisfactory to such Indemnified Party. The Indemnified Party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be paid by
the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same,
(ii) the Indemnifying Party fails to assume the defense of such action with
counsel satisfactory to the Indemnified Party in its reasonable judgment, or
(iii) the named parties to any such action (including any impleaded parties)
have been advised by such counsel that representation of such Indemnified Party
and the Indemnifying Party by the same counsel would be inappropriate under
applicable standards of professional conduct; PROVIDED, HOWEVER, that the
Indemnifying Party shall only have to pay the fees and expenses of one firm of
counsel for all Indemnified Parties in each jurisdiction. In the case of clause
(ii) and (iii) above, the Indemnifying Party shall not have the right to assume
the defense of such action on behalf of such Indemnified Party. No Indemnifying
Party shall be liable for any settlement entered into without its written
consent, which consent shall not be unreasonably withheld. No Indemnifying Party
shall, without the written consent of the Indemnified Party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of the Indemnified Party from all liability arising out of such action
or claim and (B) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of any Indemnified Party. The
rights afforded to any
14
Indemnified Party hereunder shall be in addition to any rights that such
Indemnified Party may have at common law, by separate agreement or otherwise.
(d) CONTRIBUTION. If the indemnification provided for in Section 9 from the
Indemnifying Party is unavailable to an Indemnified Party in respect of any
losses, claims, damages, expenses or other liabilities referred to therein, then
the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, expenses or other liabilities in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and the Indemnified Party as well as any other relevant equitable
considerations. The relative faults of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, was made
by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the Indemnifying Party's and Indemnified Party's relative
intent, knowledge, access to information and opportunity to correct or prevent
such action; PROVIDED, HOWEVER, that the liability of any Holder under this
Section 9(d) shall be limited to the amount of the net proceeds received by such
Holder in the offering giving rise to such liability. The amount paid or payable
by a party as a result of the losses, claims, damages, expenses or other
liabilities referred to above shall be deemed to include, subject to the
limitations set forth in Sections 9(a), 9(b) and 9(c), any legal or other fees,
charges or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution pursuant to this Section
9(d).
10. RULE 144; OTHER EXEMPTIONS. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the Act and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration or pursuant to a registration on
Form S-3, the Company covenants that it shall file in a timely manner all
reports required to be filed by it under the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and that it shall take such further
action as each Holder may reasonably request (including, but not limited to,
providing any information necessary to comply with Rules 144 and 144A (if
available with respect to resales of the Registrable Securities) under the Act),
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Act within the limitation
of the exemptions provided by (i) Rule 144 or Rule 144A (if available with
respect to resales of the Registrable Securities) under the Act, as such rules
may be amended from time to time, or (ii) any other rules or regulations now
existing or hereafter adopted by the SEC.
11. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. In the case of a
registration under Section 5, if the Company has determined to enter into an
underwriting agreement in connection therewith, no Holder may participate in
such registration unless such Holder (a) agrees to sell such Holder's
15
securities on the basis provided therein and (b) completes and executes all
questionnaires, powers-of-attorney, custody agreements, indemnities, lock-up
agreements, underwriting agreements and other documents required under the terms
of such underwriting agreement.
12. MISCELLANEOUS.
(a) TERMINATION. This Agreement shall terminate at such time when no
Registrable Securities are outstanding.
(b) NO INCONSISTENT AGREEMENTS; OTHER REGISTRATION RIGHTS. The Company
shall not enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement other than
any lock-up agreement with the underwriters in connection with an underwritten
offering pursuant to which the Company agrees, for a period not in excess of one
hundred eighty (180) days, not to register for sale, and not to sell or
otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock. The Company shall not grant any
other contractual registration rights in respect of the Common Stock which would
be inconsistent with the registration rights provided under this Agreement.
(c) REMEDIES. The Holders, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, shall be entitled to
specific performance of their 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 the provisions of this Agreement and hereby
agrees to waive in any action for specific performance the defense that a remedy
at law would be adequate.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions of such section may not be
given, unless the Company has obtained the prior written consent of Holders
holding at least 51% of each class of the Registrable Securities or, with
respect to Sections 3(a), 3(b), 3(d), 4(a), 12(b) and 12(d) of this Agreement,
Holders holding at least 66 2/3% of each class of the Registrable Securities.
(e) NOTICES. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
(i) if to the Company:
Golden Books Publishing Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, General Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
16
or, as applicable:
Golden Books Family Entertainment, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, General Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
(ii) if to Holders:
at the address set forth in the Company's records.
Each such notice, request or other communication will be effective (a) if
given by certified mail, 96 hours after such communication is deposited in the
mails with certified postage prepaid addressed as aforesaid, (b) one Business
Day after being furnished to a nationally recognized overnight courier for next
Business Day delivery, and (c) on the date sent if sent by electronic facsimile
transmission, receipt confirmed followed by a hard copy by mail.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the parties hereto; provided,
however, that the registration rights of the Holders and the other obligations
of the Company contained in this Agreement shall, with respect to any
Registrable Security, be automatically transferred from a Holder to any
subsequent holder of such Registrable Security so long as such security is a
Registrable Security. Notwithstanding any transfer of such rights, all of the
obligations of the Company hereunder shall survive any such transfer and shall
continue to inure to the benefit of all transferees.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts of law of such State.
(j) JURISDICTION. Each party to this Agreement hereby irrevocably agrees
that any legal action or proceeding arising out of or relating to this Agreement
or any agreements or transactions contemplated hereby may be brought in the
courts of the State of New York or of the United States of America for the
Southern District of New York and hereby expressly submits to the personal
jurisdiction and venue of such courts for the purposes thereof and expressly
waives any claim of improper venue and any claim that such courts are an
inconvenient forum. Each party hereby irrevocably consents to the service of
process of any of the aforementioned courts in any such suit,
17
action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to the address set forth in Section 12(e), such service
to become effective 10 days after such mailing.
(k) SEVERABILITY. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, it being intended that all
of the rights and privileges of the Holders shall be enforceable to the fullest
extent permitted by law.
(l) RULES OF CONSTRUCTION. Unless the context otherwise requires, "or" is
not exclusive, and references to sections or subsections refer to sections or
subsections of this Agreement.
(m) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings in respect of the subject matter contained herein,
other than those set forth or referred to herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(n) INTERPRETATION. This Agreement is the result of arms-length
negotiations between the parties hereto and has been prepared jointly by the
parties. In applying and interpreting the provisions of this Agreement, there
shall be no presumption that the Agreement was prepared by any one party or that
the Agreement shall be construed in favor of or against any one party.
(o) FURTHER ASSURANCES. Each of the parties shall execute such, documents
and perform such further acts as may be reasonably required or desirable to
carry out or to perform the provisions of this Agreement.
18
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
GOLDEN BOOKS PUBLISHING
COMPANY, INC.
By: /s/
-------------------------------------
Name: Xxxxxx Galares
Title: Secretary
GOLDEN BOOKS FAMILY
ENTERTAINMENT, INC.
By: /s/
-------------------------------------
Name: Xxxxxx Galares
Title: Secretary
HOLDERS: XXXXXXX RESTRUCTURING FUND, L.P.
[ /s/
----------------------------------------
By: Restructuring Capital Associates, L.P.
its General Partner
By: /s/ XXXXXXX CAPITAL CORPORATION,
-------------------------------------
Its General Partner
Name: Xxxxx X. Xxxxxxx
Title:] President
XXXXXXX OFFSHORE RESTRUCTURING FUND, INC.
[ XXXXX X. XXXXXXX
----------------------------------------
19
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:] Director
[
----------------------------------------
By:
-------------------------------------
Name:
Title:]
[
----------------------------------------
By:
-------------------------------------
Name:
Title:]
20
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
GOLDEN BOOKS PUBLISHING
COMPANY, INC.
By:
-------------------------------------
Name:
Title:
GOLDEN BOOKS FAMILY
ENTERTAINMENT, INC.
By:
-------------------------------------
Name:
Title:
HOLDERS
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Capital Management, LLC, a Delaware
limited liability company, its authorized
signatory
By: XXXXX XXXXXXX EPP By: /s/
------------------------ ---------------------------------------
Name: Xxxxx Xxxxxxx Xxx Name: XXXXXXXXXXX X. XXXXXXXXX, Counsel
Title: Counsel Title:]
[ /s/ XXXXX X. XXXXXXX
------------------------------------------
XXXXXXX RESTRUCTURING FUND, L.P.
By: Restructuring Capital Associates, its General
Partner
By: Xxxxxxx Capital Corporation, its General
Partner
By: ---------------------------------------
Name:
Title:]
21
XXXXXXX OFFSHORE RESTRUCTURING FUND, INC.
[
----------------------------------------
BY: /s/ XXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:] Director
22
