EXHIBIT 4.2
================================================================================
SECURITYHOLDERS AGREEMENT
Dated as of
July 28, 1999
between
XXXXX EQUIPMENT COMPANY,
MADISON DEARBORN CAPITAL PARTNERS II, L.P.
and
CREDIT SUISSE FIRST BOSTON CORPORATION
_____________________________________________
Common Stock of
Xxxxx Equipment Company
_____________________________________________
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. Rules of Construction...................................... 3
ARTICLE II
----------
Registration and Other Rights
SECTION 2.01. Registration Rights........................................ 3
SECTION 2.02. Preparation and Filing..................................... 5
SECTION 2.03. Indemnification............................................ 8
SECTION 2.04. Drag Along Rights.......................................... 12
SECTION 2.05. Tag Along Rights........................................... 13
ARTICLE III
Miscellaneous
SECTION 3.01. Sales of Preferred Stock................................... 14
SECTION 3.02. Rule 144A.................................................. 15
SECTION 3.03. Persons Benefitting........................................ 15
SECTION 3.04. Amendment.................................................. 15
SECTION 3.05. Notices.................................................... 16
SECTION 3.06. Governing Law.............................................. 17
SECTION 3.07. Successors................................................. 17
SECTION 3.08. Multiple Originals......................................... 17
SECTION 3.09. Table of Contents.......................................... 17
SECTION 3.10. Severability............................................... 17
i
SECURITYHOLDERS AGREEMENT dated as of July 28, 1999, between XXXXX
EQUIPMENT COMPANY, a Delaware corporation (the "Company"), MADISON DEARBORN
CAPITAL PARTNERS II, L.P., a ___________ limited partnership ("MDP"), and
CREDIT SUISSE FIRST BOSTON CORPORATION.
The Company desires to issue 51,927 Units (the "Units") each of which
consists of one 15% Senior Discount Debenture due 2011 (the "Debentures") with a
principal amount at maturity of $1,000 and .8745 shares of its common stock, par
value $.01 per share (the "Common Stock"), of the Company.
The Debentures and the Common Stock will trade separately upon the
earlier of (i) the commencement of an exchange offer or effectiveness of a shelf
registration statement with respect to the Debentures or (ii) 180 days after the
issue date of the Units.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the shares of Common Stock
issued as part of the Units (collectively, the "Shares"):
ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions.
-----------
"Affiliate" of any specified Person means (i) any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Board" means the Board of Directors of the Company or any committee
thereof duly authorized to act on behalf of such Board of Directors.
"Business Day" means any day other than a Saturday, Sunday or day on
which commercial banking institutions are not required by law to be open in the
States of New York or Illinois.
1
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holders" means any holder from time to time of the Shares.
"Independent Third Party" means any Person that is not an Affiliate of
the Company or MDP.
"Initial Purchaser" means Credit Suisse First Boston Corporation.
"Issue Date" means the date on which the Units are initially issued.
"MDP" means Madison Dearborn Capital Partners II, L.P.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Initial Purchaser. The counsel may be an employee of or
counsel to the Company or the Initial Purchaser.
"Permitted Holder" means Madison Dearborn Capital Partners II, L.P.
and any Affiliate thereof.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Public Offering" means an underwritten public offering of Common
Stock of the Company pursuant to an effective registration statement under the
Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2
"Transfer" shall mean any voluntary or involuntary, direct or indirect
sale, transfer, conveyance, assignment, pledge, hypothecation, gift or other
disposition.
"Transfer Restricted Securities" means the Shares. Each Share shall
cease to be a Transfer Restricted Security when (i) it has been disposed of
pursuant to a registration statement of the Company filed with the SEC and
declared effective by the SEC that covers the disposition of such Transfer
Restricted Security, (ii) it has been distributed pursuant to Rule 144
promulgated under the Securities Act (or any similar provisions under the
Securities Act then in effect) or (iii) it has been otherwise transferred and
may be resold without registration under the Securities Act.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
SECTION 1.02. Rules of Construction. Unless the text otherwise
---------------------
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including, without limitation and
(v) words in the singular include the plural and words in the
plural include the singular.
ARTICLE II
Registration and Other Rights
-----------------------------
SECTION 2.01. Registration Rights. (a) If the Company proposes to
-------------------
register any of its Common Stock pursuant to the Securities Act (other than
pursuant to a registration statement on Form S-8 or Form S-4 or successor
forms thereto or in
3
connection with a registration the primary purpose of which is to register debt
securities), whether or not for its own account, then the Company shall in each
case give written notice, not later than the date of the initial filing of the
related registration statement, of such proposed registration to the holders of
the Shares and such notice shall offer to the Holders the opportunity to include
in such registration statement such number of Shares as such Holders may
request. Within 20 days after receipt of such notice, the Holders of Transfer
Restricted Securities (the "Requesting Holders") shall, subject to the following
sentence, have the right by notifying the Company in writing to require the
Company to include in such registration statement such number of Shares as such
Holder may request.
(b) Notwithstanding the foregoing, if at any time the managing
underwriter or underwriters of a registration in connection with a Public
Offering (the "Managing Underwriter") shall advise the Company in writing that,
in its opinion, the total number of shares proposed to be sold exceeds the
maximum number of shares which the Managing Underwriter believes may be sold
without materially adversely affecting the price, timing or distribution of the
Public Offering, then the Company will be required to include only that number
of shares which the Managing Underwriter believes may be sold without causing
such adverse effect in the following order:
(i) all the shares that the Company proposes to sell in such
Public Offering, and
(ii) all the shares that are proposed to be sold by any holder
of Common Stock of the Company including the shares of the Requesting
Holders on a pro rata basis in proportion to the amount of shares of Common
Stock owned by the holder thereof in an aggregate number which is equal to
the difference between the maximum number of shares that may be distributed
in such Public Offering as determined by the Managing Underwriter and the
number of shares to be sold in such Public Offering pursuant to clause (i)
above.
(c) The Company will have the right to postpone or withdraw any
registration statement relating to a Public Offering described under this
Section 2.01 prior to the effective date without obligation to any Requesting
Holder.
(d) All registration expenses (other than underwriting commissions and
discounts payable in respect of Shares sold by the Holders) shall be paid by the
Company in the case of any and all registrations governed by this Section 2.01.
4
SECTION 2.02. Preparation and Filing. (a) Whenever the Company is
----------------------
required to include in a registration statement any Shares, the Company will as
soon as practicable:
(i) prepare and file with the SEC a registration statement with
respect to such common stock and use its best efforts to cause such
registration statement to reasonably become and remain effective for the
period set forth in subsection (ii) below and reasonably promptly notify
the Holders (x) when such registration statement becomes effective, (y)
when any amendment to such registration statement becomes effective and (z)
of any request by the SEC for any amendment or supplement to such
registration statement or any prospectus relating thereto or for additional
information;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all securities covered by
such registration statement for a period of not less than 90 days after the
effective date of such registration statement (or such shorter period to
the extent necessary to permit the completion of the sale or distribution
of such securities within such period);
(iii) furnish to such Holders such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus), reports on Forms 10-K and 10-Q (or their
equivalents) which the Company shall have filed with the SEC and financial
statements, reports and proxy statements mailed to shareholders of the
Company to the extent such Forms or reports are incorporated by reference
in the registration statement as such Holders may reasonably request in
order to facilitate the disposition of the Shares being sold;
(iv) use its reasonable best efforts to register or qualify, not
later than the effective date of any filed registration statement, the
common stock covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as such Holders reasonably request;
provided that the Company will not be required to (A) qualify to do
--------
business as a foreign corporation or as a
5
dealer in any jurisdiction where it is not so qualified, (B) subject itself
to taxation in any jurisdiction where it is not subject to taxation, (C)
consent to general service of process in any jurisdiction where it is not
subject to general service of process or (D) take any action that would
subject it to service of process in suits other than those arising out of
the offer or sale of the Common Stock covered by the registration
statement;
(v) to the extent that the Company has elected to proceed with a
firm commitment underwritten offering ("Underwritten Offering"), make
available, upon reasonable notice and during business hours, for inspection
by the Managing Underwriter or underwriters for the common stock (and their
counsel) (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents, agreements and properties of the Company as
shall be reasonably necessary to enable them to exercise their due
diligence responsibilities and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
Inspector in connection with the registration statement; provided, however,
-------- -------
that any such Inspector shall first agree in writing with the Company that
any information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such Inspector, unless (A)
disclosure of such information is required by a court or administrative
order or is necessary to respond to inquiries of regulatory authorities,
(B) disclosure of such information is required by law (including any
disclosure requirements pursuant to Federal securities laws in connection
with the filing of a registration statement or the use of any prospectus
referred to in this Agreement), (C) such information generally becomes
available to the public other than as a result of a disclosure or failure
to safeguard any such information by any Inspector or (D) such information
becomes available to any such Inspector from a source other than the
Company or its agents and such source is not bound by a confidentiality
agreement; provided, however, that prior to the disclosure of such
-------- -------
information by such Inspector pursuant to clauses (A) or (B) above, such
Inspector shall provide the Company with prompt written notice of such
proposed disclosure to permit the Company to seek an appropriate protective
order preventing such disclosure, but it is understood that the Inspector
may comply with the requirements of law.
6
(vi) obtain a comfort letter from the Company's independent
public accountants dated the effective date of the registration statement
(and as of such other dates as the Managing Underwriter or underwriters for
the common stock may reasonably request) in customary form and covering
such matters of the type customarily covered by such comfort letters as
such Managing Underwriter or underwriters reasonably request;
(vii) to the extent that the Company has elected to proceed with
an Underwritten Offering, to use its reasonable best efforts to obtain an
Opinion of Counsel dated the effective date of the registration statement
(and as of such other dates as the Managing Underwriter or underwriters for
the common stock may reasonably request) in customary form and covering
such matters of the type customarily covered by such opinions as counsel
designated by such Managing Underwriter or underwriters reasonably
request;
(viii) during the period when the registration statement is
required to be effective, notify such Holders of the happening of any event
as a result of which the prospectus included in the 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, and the Company will forthwith prepare a
supplement or amendment to such prospectus so that, as thereafter delivered
to the purchasers of such common stock, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(ix) in the case of an Underwritten Offering, enter into an
underwriting agreement containing customary terms, including such indemnity
and contribution provisions as the managing underwriter or underwriters
customarily require or may reasonably require;
(x) cause such common stock to be traded on each securities
exchange on which similar securities issued by the Company are then traded,
provided that the Company is eligible to do so under applicable listing
requirements; and
(xi) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering a period
7
of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Holders participating in such offering shall timely furnish to
the Company such information regarding the distribution of such common stock as
the Company may from time to time reasonably request.
(c) The Holders agree that upon the receipt of any notice from the
Company of the happening of any event of the kind described in paragraph
(a)(viii) above, they will forthwith discontinue, and cause any underwriter
acting on their behalf to agree to discontinue the disposition of common stock
pursuant to the registration statement covering such common stock until the
Holders' receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (a)(viii) above.
SECTION 2.03. Indemnification. (a) In connection with any
---------------
registration statement contemplated by this Agreement, the Company agrees to
indemnify and hold harmless each Holder of Shares covered thereby, the
directors, officers and employees of each such Holder and each person who
controls any such Holder within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement as originally filed or in any amendment thereof, or in
any preliminary prospectus or prospectuses contained therein, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that (i) the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any such Holder
8
or the underwriter specifically for inclusion therein, and (ii) the Company will
not be liable to any indemnified party under these provisions with respect to
any registration statement or prospectus to the extent that any such loss,
claim, damage or liability of such indemnified party results from the use of the
prospectus during a period when the use of the prospectus has been suspended in
accordance with Section 2.02(a)(viii), hereof; provided, in each case, that such
--------
Holders received prior notice of such suspension. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses (as
hereinafter defined), as provided in Section 2.03(d), of any underwriters of
common stock registered under a registration statement, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Holders common stock covered by
a registration statement as provided in this Section 2.03(a). The Company also
shall, if requested by any Holder of Shares covered by a registration statement,
enter into an underwriting agreement containing customary terms and conditions,
including those related to indemnification.
(b) Each Holder of Shares covered by a registration statement
severally agrees to indemnify and hold harmless (i) the Company, (ii) each of
its directors, (iii) each of its officers who signs such registration statement
and (iv) each Person who controls the Company within the meaning of either the
Securities Act or the Exchange Act to the same extent as the foregoing indemnity
from the Company to each such Holder, but only with reference to written
information relating to such Holder furnished to the Company by or on behalf
of such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity, provided, however, that the aggregate liability of any
-------- -------
Holder pursuant to the provisions of this paragraph shall be limited to an
amount equal to the aggregate purchase price received by the Holder from the
sale of the Shares covered by such registration statement.
This indemnity agreement will be in addition to any liability which any such
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
2.03 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 2.03, notify the indemnifying party in writing of the
9
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel (and local counsel) if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it or other indemnified parties which are different from or
additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of such action or
(iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party;
provided, however, that the indemnifying party shall be obligated to pay
-------- -------
for only one such separate counsel for all indemnified parties in each
action or related group of actions. An indemnifying party
10
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 2.03 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the registration statement which
resulted in such Losses; provided, however, that in no case shall any Holder of
-------- -------
any Common Stock be responsible, in the aggregate, for any amount in excess of
the dollar amount of the proceeds received by such Holder from the sale of such
Holder's Common Stock. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand. The parties agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section 2.03, each person who controls
a Holder common stock
11
covered by a registration statement within the meaning of either the Securities
Act or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the Securities Act
or the Exchange Act, each officer of the Company who shall have signed such
registration statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 2.03 will remain in full force and
effect, regardless of any investigation made by or on behalf of any holder or
the Company or any of the officers, directors or controlling persons referred to
in this Section 2.03 hereof, and will survive the sale by a Holder of Shares
covered by a registration statement.
SECTION 2.04. Drag Along Rights. (a) If, prior to the consummation of
-----------------
an underwritten registered Public Offering, the Board of Directors of the
Company and the holders of a majority of the capital stock entitled to vote
thereon approve a sale to an Independent Third Party or group of Independent
Third Parties pursuant to which such party or parties acquire:
(i) Voting Stock (whether by merger, consolidation sale,
transfer or exchange of the Company's capital stock) or
(ii) all or substantially all of the Company's assets determined
on a consolidated basis approved by the Board of Directors of the Company
and with respect to which all holders of Common Stock receive or are
generally offered the same form and amount of per share consideration,
then, upon 10 Business Days' written notice which notice shall include
reasonable details of the proposed sale, including the proposed time and place
of the closing and the consideration to be received by the holders of Common
Stock, the Company shall have the right to require the Holders of the Shares to
sell, transfer and deliver or cause to be sold, transferred and delivered, to
such Person, their Shares in the same transaction at the closing thereof;
provided that the consideration to be received by all Holders shall be the same
--------
(in terms of price per share, terms, conditions and in all other material
respects) as that to be received by the Company's other holders of Common Stock
and, in any event, shall be cash and/or securities registered under the
Securities Act and listed on a national securities exchange
12
or authorized for quotation on The Nasdaq Stock Market, Inc.; and provided
--------
further, that if a Holder of a Share has, prior to its receipt of a notice
-------
pursuant to this Section 2.04(a), entered into a binding agreement to transfer
the Shares, such Holder shall not be prohibited from consummating such transfer,
notwithstanding anything to the contrary contained in this Section 2.04(a). Any
purchase of Shares pursuant to this Section shall be deemed a "Drag Along
Purchase". Each holder of Common Stock shall sell all of the Shares held by it.
(b) In connection with any Drag Along Purchase, each Holder will be
obligated to:
(i) consent to and raise no objections against the sale to the
Independent Third Party,
(ii) waive all dissenter's rights and other similar rights, and
(iii) take all reasonably necessary and desirable actions as
directed by the Board in connection with the consummation of such sale,
provided, that each Holder shall only be required to make customary and
reasonable representations, warranties and indemnities regarding its
title to and ownership of its Shares.
(c) The obligations of the Holders pursuant to Sections 2.04(a) and
(b), shall be subject to the receipt by the Company from a nationally recognized
investment bank of a written fairness opinion that the consideration received by
the holders of Common Stock (including the Holders) is fair and adequate, a copy
of which opinion shall be delivered to the Holders. The Company shall be liable
for the reasonable expenses of the Holders incurred in connection with a Drag
Along Purchase.
SECTION 2.05. Tag Along Rights. (a) If, prior to the consummation of
----------------
an underwritten registered Public Offering, a Permitted Holder proposes to
Transfer any shares of Common Stock, such Permitted Holder shall deliver a
written notice to the Company and registered Holders specifying in reasonable
detail the identity of the prospective transferee(s) and the terms and
conditions of the Transfer no later than 10 Business Days prior to such proposed
Transfer. Each Holder may elect to participate in the contemplated Transfer by
delivering written notice to the transferring securityholder within 10 Business
Days after delivery of the sale notice.
13
(b) If any Holder has elected to participate in such Transfer pursuant
to Section 2.05(a), each such Holder shall be entitled to sell in the
contemplated Transfer, at the same price and the same terms, a number of shares
equal to the product of (i) the quotient determined by dividing the number of
Shares owned by such Holder by the aggregate number of shares of Common Stock
outstanding on a fully diluted basis prior to giving effect to such Transfer and
(ii) the aggregate number of shares of Common Stock to be sold in the
contemplated Transfer. Each Holder transferring Shares in a Transfer shall pay
its pro rata share (based on the number of shares of Common Stock to be sold) of
the expenses incurred by the securityholders in connection with such transfer.
(c) Notwithstanding the foregoing, the following Transfers shall not
be subject to the provisions of Sections 2.05(a) and (b):
(i) a Transfer by a Permitted Holder to its Affiliates,
employees and consultants,
(ii) a Transfer by a Permitted Holder to any employee,
prospective employee, director or prospective director of the Company, WEC
or any of their Affiliates,
(iii) a Transfer by a Permitted Holder to any former or
prospective employee, director or prospective director of MDP or any
Affiliate of such Affiliate,
(iv) a Transfer by a Permitted Holder to any person in order to
resolve certain regulatory issues, or
(v) a Transfer by a Permitted Holder of shares of Common Stock
representing an aggregate of 5% or less of the Company's outstanding shares
of Common Stock together with all other Transfers pursuant to this clause
(v) within the previous six months.
ARTICLE III
Miscellaneous
-------------
SECTION 3.01. Sales of Preferred Stock. The Company hereby agrees
------------------------
that, without the prior written consent of a majority of the holders of the
outstanding Shares at the time such is taken, it will not:
14
(i) amend, modify or alter any of the terms of its 8%
Cumulative Redeemable Preferred Stock, par value $0.01 per share (the
"Redeemable Preferred Stock") as set forth in the Company's Restated
Certificate of Incorporation as in effect on the date of this
Securityholders Agreement;
(ii) sell to MDP or any of its Affiliates any shares of
Redeemable Preferred Stock unless, in connection with such sale of
Redeemable Preferred Stock, the sale price per share for the Redeemable
Preferred Stock is equal to $1,000.00 per share and MDP or such Affiliate
also purchases shares of Common Stock having an aggregate purchase price of
at least $356.00 for each share of Redeemable Preferred Stock purchased by
MDP or the Affiliate; or
(iii) sell any shares of the preferred stock of the Company to
MDP or any of its Affiliates.
SECTION 3.02. Rule 144A. The Company hereby agrees with each Holder,
---------
for so long as any Transfer Restricted Securities remain outstanding and
during any period in which the Company is not subject to Section 13 or 15(d) of
the Exchange Act, to make available, upon request of any Holder, to any Holder
or beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 3.03. Persons Benefitting. Nothing in this Agreement is
-------------------
intended or shall be construed to confer upon any Person other than the Company,
MDP and the Holders from time to time of the Shares any right, remedy or claim
under or by reason of this agreement or any part hereof.
SECTION 3.04. Amendment. This Agreement may be amended by the parties
---------
hereto without the consent of any Holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein or making any other provisions with respect to matters or
questions arising under this Agreement as the Company may deem necessary or
desirable; provided, however, that such action shall not affect adversely the
-------- -------
rights of the Holders. Any amendment or supplement to this Agreement that has
an adverse effect on the interests of the Holders shall require the written
consent of the Holders of a majority of the then outstanding common stock.
15
In determining whether the Holders of the required number of shares of
common stock have concurred in any direction, waiver or consent, common stock
owned by the Company or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company shall
be disregarded and deemed not to be outstanding. Also, subject to the
foregoing, only common stock outstanding at the time shall be considered in any
such determination.
SECTION 3.05. Notices. Any notice or communication shall be in
-------
writing and delivered by hand or overnight courier service, mailed by certified
or registered mail or sent by telecopy, as follows:
if to the Company:
Xxxxx Equipment Company
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Telephone: (000) 000-0000
Attn:
if to MDP:
Madison Dearborn Partners, Inc.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Telephone: (000) 000-0000
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 3.04 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 3.04.
The Company or MDP by notice to the other may designate additional or
different addresses for subsequent notices or communications.
16
Any notice or communication mailed to a Holder shall be mailed to the
Holder at the Holder's address as it appears in the register of the Company and
shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 3.06. Governing Law. The laws of the State of New York shall
-------------
govern this Agreement without giving effect to applicable principles of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 3.07. Successors. All agreements of the Company and MDP in
----------
this Agreement shall bind their successors.
SECTION 3.08. Multiple Originals. The parties may sign any number of
------------------
copies of this Agreement. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Agreement.
SECTION 3.09. Table of Contents. The table of contents and headings
-----------------
of the Articles and Sections of this Agreement have been inserted for
convenience of reference only, are not intended to be considered a part hereof
and shall not modify or restrict any of the terms or provisions hereof.
SECTION 3.10. Severability. The provisions of this Agreement are
------------
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Agreement in any jurisdiction.
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
XXXXX EQUIPMENT COMPANY
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and CEO
MADISON DEARBORN CAPITAL PARTNERS II, L.P.
By: MADISON DEARBORN PARTNERS II, L.P.
Its: General Partner
By: MADISON DEARBORN PARTNERS, INC.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title:
18
