EXHIBIT 99.d
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
dated August 6, 1997
between
Xxxxx Xxxxxx Group Inc.,
General Electric Company,
General Electric Capital Corporation,
General Electric Capital Services, Inc. and
Xxxxxx, Peabody Group Inc.
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions
Section 1.1. Definitions................................ 1
ARTICLE 2
Representations and Warranties
Section 2.1. Representations and Warranties............. 4
ARTICLE 3
Standstill and Voting Provisions
Section 3.1. Restrictions of Certain Actions by
Shareholder.............................. 4
Section 3.2. Board Representation....................... 6
Section 3.3. Voting..................................... 6
ARTICLE 4
Transfer Restrictions
Section 4.1. Restrictions of Transfer................... 7
Section 4.2. Permitted Transfers........................ 7
Section 4.3. Company Call Right......................... 8
Section 4.4. Right of First Refusal..................... 10
Section 4.5. Assignment................................. 11
ARTICLE 5
Registration Rights
Section 5.1. Registration upon Request.................. 11
Section 5.2. Incidental Registration Rights............. 13
Section 5.3. Broad Public Distribution; Lead Manager.... 14
Section 5.4. Registration Mechanics..................... 14
Section 5.5. Expenses................................... 17
Section 5.6. Indemnification and Contribution........... 17
Section 5.7. Underwriting Agreement..................... 20
ARTICLE 6
Shareholder Purchase Rights
Section 6.1. Shareholder Purchase Rights................ 21
ARTICLE 7
Miscellaneous
Section 7.1. Termination............................... 22
Section 7.2. Financial Services Group.................. 22
Section 7.3. Legend.................................... 22
Section 7.4. Specific Performance...................... 23
Section 7.5. Entire Agreement.......................... 24
Section 7.6. Severability.............................. 24
Section 7.7. Headings.................................. 24
Section 7.8. Counterparts.............................. 24
Section 7.9. Notices................................... 24
Section 7.10. Successors and Assigns.................... 26
Section 7.11. Governing Law............................. 26
Section 7.12. Compliance by Affiliates.................. 26
Section 7.13. Reports................................... 26
Section 7.14. Fair Market Value Determination........... 26
Section 7.15. Aggregation; Definition of Shareholder.... 27
Section 7.16. Effectiveness............................. 27
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"Agreement"), dated August 6, 1997, is between Xxxxx Xxxxxx Group Inc., a
Delaware corporation (the "Company"), General Electric Company, a New York
corporation ("Parent"), Xxxxxx, Peabody Group Inc., a Delaware corporation and
an indirect wholly-owned subsidiary of Parent ("Group"), General Electric
Capital Services, Inc., a Delaware corporation ("GECS") and General Electric
Capital Corporation, a New York corporation (together with GECS, the
"Shareholder", which term shall include Parent and any subsidiary (as defined
below) of Parent to the extent Voting Securities (as defined below) have been
transferred to Parent or such subsidiary pursuant to Section 4.2(a)(i)).
WHEREAS, the Company, Parent and Group (i) have previously
entered into a Stockholders Agreement dated December 16, 1994 and (ii) desire
to amend and restate such Stockholders Agreement, effective upon consummation
of the sale of the capital stock of Xxxxxx, Xxxxxxx & Co. Incorporated
pursuant to a Share Purchase Agreement (the "Share Purchase Agreement") dated
the date hereof among the Company, Parent and GECS; and
WHEREAS, Shareholder currently holds 1,000,000 shares of the
Company's 6% Cumulative Convertible Redeemable Preferred Stock, Series A,
stated value $100 per share, and 2,500,000 shares of the Company's 9%
Cumulative Redeemable Preferred Stock, Series C, stated value $100 per share,
and, upon consummation of the sale of the capital stock of Xxxxxx, Peabody &
Co. Incorporated pursuant to the Share Purchase Agreement, is acquiring
15,500,000 shares of the Company's Common Stock, par value $1.00 per share;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Asset Purchase Agreement" means the Asset Purchase Agreement
dated as of October 17, 1994 between the Company, Parent and Group, as amended
and supplemented.
"Broad Public Distribution" means an underwritten
distribution registered under the 1933 Act or a distribution exempt from
registration thereunder in which Shareholder uses its best efforts to cause
the underwriters expressly to agree in writing for the benefit of the
Company that they collectively will not sell Voting Securities to any
"person" within the meaning of Section 13(d)(3) of the 1934 Act who, to the
best of such underwriters' knowledge after inquiry, would own, immediately
after such distribution, Voting Securities having aggregate voting power of
more than 3% of the voting power of all the then outstanding Voting
Securities.
"Common Stock" means the common stock, par value $1.00 per
share, of the Company.
"Convertible Preferred Stock" means the 6% Cumulative
Convertible Redeemable Preferred Stock, Series A, stated value $100 per share,
of the Company.
"Equity Treatment Percentage" means the lesser of (i) 20% and
(ii) the minimum percentage of Common Stock required to be owned to permit
Parent to account for its beneficial ownership of Voting Securities in
accordance with the "equity" method of accounting.
"Fair Market Value" of the Common Stock as of any day shall
mean the average daily closing sales price of the Common Stock for the ten
consecutive trading days preceding such day. The closing price for each
day shall be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in either case on the principal national
securities exchange on which the Common Stock is listed and admitted to
trading, or if not listed and admitted to trading on any such exchange, on
the NASDAQ National Market System, or if not quoted on the National Market
System, the average of the closing bid and asked prices in the over-the-
counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.
"Financial Services Group" means General Electric Capital
Services, Inc. and its subsidiaries (including, without limitation, Xxxxxx,
Xxxxxxx Group Inc. and General Electric Capital Corporation), General Electric
Investment Corporation, General Electric Investment Management Incorporated or
any other Affiliate of Parent engaged in the financial services business.
"Preferred Stock" means, collectively, the Convertible
Preferred Stock and the Redeemable Preferred Stock.
"Redeemable Preferred Stock" means the 9% Cumulative Redeemable
Preferred Stock, Series C, stated value $100 per share, of the Company.
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), (i) any corporation of which securities
representing more than 50% of the equity and more than 50% of the ordinary
voting power are, at the time any determination is being made, owned by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent or (ii) any entity (other than a corporation)
controlled by the parent of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions and representing more than 50% of
the equity are, at the time any determination is being made, owned by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Third Party Account" means any account managed for the benefit
of another person (other than Parent or any Affiliate of Parent) by any member
of the Financial Services Group.
"Total Voting Power" means the aggregate number of votes which
may be cast by holders of outstanding Voting Securities.
"Voting Securities" means any securities of the Company
entitled to vote generally in the election of directors of the Company or
any direct or indirect rights or options to acquire any such securities or
any securities convertible or exercisable into or exchangeable for such
securities.
(b) Except as otherwise specified herein, terms used in this
Agreement shall have the respective meanings assigned to such terms in the
Asset Purchase Agreement. The rules of interpretation specified in Section
1.02 of the Asset Purchase Agreement shall be applicable to this Agreement.
Unless otherwise specified all references to "days" shall be deemed to be
references to calendar days.
ARTICLE 2
Representations and Warranties
Section 2.1. Representations and Warranties. Each of Parent
and Shareholder represents and warrants to the Company that (i) each
Shareholder entity is a wholly-owned indirect subsidiary of Parent; and
(ii)(a) Shareholder "beneficially owns" (as such term is defined in Rule 13d-3
under the 0000 Xxx) 2,500,000 shares of Redeemable Preferred Stock, 1,000,000
shares of Convertible Preferred Stock and 15,500,000 shares of Common Stock,
(b) the Financial Services Group (which includes Shareholder) does not
beneficially own any other Voting Securities except for any Voting Securities
held in any Third Party Account and (c) to the best knowledge of Parent,
neither it nor any of its Affiliates beneficially owns any other Voting
Securities, except for any Voting Securities held in any Third Party Account.
ARTICLE 3
Standstill and Voting Provisions
Section 3.1. Restrictions of Certain Actions by
Shareholder. Parent will not, and will cause each of its Affiliates not
to, singly or as part of a partnership, limited partnership, syndicate or
other group (as those terms are defined in Section 13(d)(3) of the 1934
Act), directly or indirectly:
(a) except as permitted under Section 6.1, acquire, offer to
acquire, or agree to acquire, by purchase, gift or otherwise, any Voting
Securities, except pursuant to a stock split, stock dividend, rights offering,
recapitalization, reclassification or similar transaction;
(b) make, or in any way participate in any "solicitation" of
"proxies" to vote (as such terms are defined in Rule 14a-1 under the 1934
Act), solicit any consent or communicate with or seek to advise or influence
any person or entity with respect to the voting of any Voting Securities or
become a "participant" in any "election contest" (as such terms are defined
or used in Rule 14a-11 under the 0000 Xxx) with respect to the Company;
(c) form, join, encourage or in any way participate in the
formation of, any "person" within the meaning of Section 13(d)(3) of the 1934
Act with respect to any Voting Securities; provided that this Section 3.1(c)
shall not prohibit any such arrangement solely among Parent and any of its
wholly-owned subsidiaries;
(d) deposit any Voting Securities into a voting trust or subject
any such Voting Securities to any arrangement or agreement with respect to the
voting thereof; provided that this Section 3.1(d) shall not prohibit any such
arrangement solely among Parent and any of its wholly-owned subsidiaries;
(e) initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals with respect to the Company as
described in Rule 14a-8 under the 1934 Act, or induce or attempt to induce any
other person to initiate any stockholder proposal;
(f) except in accordance with and pursuant to Section 3.2, seek
election to or seek to place a representative on the Board of Directors of the
Company or, except with the approval of management of the Company, seek the
removal of any member of the Board of Directors of the Company;
(g) except with the approval of management of the Company, call
or seek to have called any meeting of the stockholders of the Company;
(h) except through its representative on the Board of Directors of
the Company, otherwise act to seek to control, disrupt or influence the
management, business, operations, policies or affairs of the Company except
with the approval of management of the Company;
(i) (A) solicit, seek to effect, negotiate with or provide any
information to any other party with respect to, (B) make any statement or
proposal, whether written or oral, to the Board of Directors of the Company
or any director or officer of the Company with respect to, or (C) otherwise
make any public announcement or proposal whatsoever with respect to, any form
of business combination transaction involving the Company, including, without
limitation, a merger, exchange offer or liquidation of the Company's assets,
or any restructuring, recapitalization or similar transaction with respect to
the Company; provided that the foregoing shall not (x) apply to discussions
between officers, employees or agents of Parent or Shareholder and the
representative of Shareholder on the Board of Directors of the Company or (y)
in the case of clause (B) above, be interpreted to limit the ability of such
representative to make any such statement or proposal or to discuss any such
proposal with any officer, director or advisor to the Company or the Board of
Directors of the Company in connection with the performance by such
representative of his duty as a director;
(j) disclose or announce any intention, plan or arrangement
inconsistent with the foregoing; or
(k) advise, assist, instigate or encourage any third party to do
any of the foregoing (except, for purposes of clause (a) above, in connection
with any transfer of Voting Securities permitted under Section 4.2).
If Parent or any of its Affiliates owns or acquires any Voting
Securities in violation of this Agreement, such Voting Securities shall
immediately be disposed of to persons who are not Affiliates thereof but only
in compliance with the provisions of this Agreement; provided that the Company
may also pursue any other available remedy to which it may be entitled as a
result of such violation.
Section 3.2. Board Representation. (a) The Company will cause
one person mutually agreed upon by Parent and the Company to be elected to the
Company's Board of Directors concurrently with the execution hereof.
(b) Thereafter, so long as Shareholder owns Voting Securities
representing at least 10% of Total Voting Power (calculated on a fully diluted
basis assuming conversion or exchange of all outstanding securities of the
Company convertible into or exchangeable for Voting Securities and the
exercise of all rights or options to acquire Voting Securities), subject to the
further provisions of this Section 3.2, the Company's Nominating Committee (or
any other committee exercising a similar function) (the "Nominating
Committee") shall recommend to the Board of Directors of the Company that such
person (or any successor designated by Parent and approved by the Nominating
Committee) be included in the slate of nominees recommended by the Board of
Directors of the Company to shareholders for election as directors at each
annual meeting of shareholders of the Company at which such person's term
expires.
(c) In the event that the designee of Shareholder shall cease to
serve as a director for any reason, the vacancy resulting thereby shall be
filled by a person designated by Parent and approved by the Nominating
Committee.
(d) In the event that at any time Shareholder shall own Voting
Securities representing less than 10% of Total Voting Power (calculated as
provided in Section 3.2(b)), Shareholder shall have no further rights under
this Section 3.2 and shall promptly cause to resign, and take all other action
reasonably necessary to cause the prompt removal of, its designee to the Board
of Directors of the Company.
Section 3.3. Voting. (a) Whenever Shareholder shall have the
right to vote any Voting Securities, Shareholder shall (i) be present, in
person or represented by proxy, at all stockholder meetings of the Company so
that all Voting Securities beneficially owned by it shall be counted for the
purpose of determining the presence of a quorum at such meetings, and (ii)
subject to Section 3.3(b) below, vote or cause to be voted, or consent with
respect to, all Voting Securities beneficially owned by it in the manner
recommended by the Company's Board of Directors, except that during any period
or at any time when there shall be in full force and effect a valid order or
judgment of a court of competent jurisdiction or a ruling, pronouncement or
requirement of the New York Stock Exchange, Inc. ("NYSE") to the effect that
the foregoing provision of this Section 3.3 is invalid, void, unenforceable or
not in accordance with NYSE policy, then Shareholder will, if so requested by
the Board of Directors of the Company, vote or cause to be voted all Voting
Securities beneficially owned by it in the same proportion as the votes cast by
or on behalf of the other holders of Voting Securities.
(b) Notwithstanding anything to the contrary contained in Section
3.3(a) above, Shareholder shall have the right to vote freely, without regard
to any request or recommendation of the Board of Directors of the Company,
with respect to (i) all matters specified in paragraph (8) of the Certificate
of Designation of Rights and Preferences for the Convertible Preferred Stock
and paragraph (7) of the Certificate of Designation of Rights and Preferences
for the Redeemable Preferred Stock and (ii) any "Rule 13e-3 transaction" (as
defined in Rule 13e-3(a)(3) under the 1934 Act as in effect on the date hereof)
unless such transaction has been approved by a majority of the disinterested
directors of the Board of Directors of the Company.
ARTICLE 4
Transfer Restrictions
Section 4.1. Restrictions of Transfer. Except as otherwise
expressly permitted in this Agreement, Parent will not, and will not permit
its Affiliates to, directly or indirectly, transfer, sell, assign, pledge,
convey, hypothecate or otherwise encumber or dispose of ("transfer") any
Voting Securities.
Section 4.2. Permitted Transfers. (a) Notwithstanding the
provisions of Section 4.1, Parent and its Affiliates shall be permitted to
transfer any portion of or all their shares of Voting Securities or Redeemable
Preferred Stock under the following circumstances:
(i) transfers to any subsidiary of Parent, but only if such
transferee agrees in writing to be bound by the terms of this Agreement,
provided that such subsidiary shall be permitted to own such Voting Securities
only so long as such subsidiary shall remain a subsidiary of Parent and
provided further that no such transfer shall relieve Parent or Shareholder of
their obligations under this Agreement;
(ii) subject to the Company's rights under Section 4.4, in
the case of shares of Common Stock (including Common Stock issuable upon
conversion or redemption of the Convertible Preferred Stock), transfers
made pursuant to (A) a Broad Public Distribution or (B) Rule 144 under the
1933 Act, provided that any such sale pursuant to Rule 144 shall be subject
to the volume and manner of sale limitations set forth in such Rule whether
or not legally required;
(iii) subject to the Company's rights under Section 4.4, in
the case of shares of Convertible Preferred Stock, after December 16, 1999,
transfers made pursuant to a demand registration under Section 5.1(a);
(iv) pursuant to a tender offer or exchange offer or
acquisition of control of the Company or similar transaction, at any time
following the time at which the Company shall publicly announce or otherwise
disclose to Shareholder that the Board of Directors of the Company does not
oppose such transaction; or
(v) transfers of any portion of or all its shares of
Redeemable Preferred Stock to any person, provided that (A) Parent shall give
not less than 45 days prior written notice to the Company of its intention to
transfer such shares and (B) such person agrees in writing to be bound by the
terms of this Section 4.2(a)(v). Such notice shall specify the number of
shares of Redeemable Preferred Stock proposed to be transferred and the date
of the proposed transfer of such shares.
(b) Notwithstanding anything to the contrary in this Agreement,
Voting Securities shall not be transferred by Parent or any of its Affiliates
to any person (i) pursuant to a tender offer or exchange offer or acquisition
of control of the Company or similar transaction which is opposed by the
Company's Board of Directors or (ii) during the 12 months following the date
of effectiveness of this Agreement other than transfers permitted pursuant to
Section 4.02(a)(i) or Section 4.02(a)(iv).
Section 4.3. Company Call Right. (a) The Company shall have
the right (the "Call Right"), exercisable at any time or from time to time,
upon written notice to Shareholder (the "Call Notice"), to elect to purchase a
portion (to the extent provided below) of or all the shares of Common Stock
then held by Shareholder, at a purchase price per share payable in cash
(the "Call Price") equal to the greater of (x) the Fair Market Value of the
Common Stock as of the date of delivery of the Call Notice and (y)
$23.95634. Delivery of any Call Notice by the Company to Shareholder shall
be irrevocable.
(b) Notwithstanding the provisions of Section 4.3(a), if the
Company exercises its Call Right for less than all of the Common Stock then
held by Shareholder, (i) if immediately prior to such exercise, Parent
beneficially owns not less than the Equity Treatment Percentage of outstanding
Common Stock and, at such time, Parent accounts for such ownership of Common
Stock in accordance with the equity method of accounting, then the Company
shall be permitted to exercise its Call Right in part only to the extent that
such exercise would not reduce the percentage of outstanding Common Stock
beneficially owned by Parent below the Equity Treatment Percentage and (ii)
if immediately prior to such exercise, the Company is a 20-percent owned
corporation within the meaning of Section 243(c)(2) of the Code as in
effect on the date hereof (a "20-percent owned corporation") of the
Shareholder, then the Company shall be permitted to exercise its Call Right
in part only to the extent that such exercise would not result in the
Company ceasing to be a 20-percent owned corporation of the Shareholder.
For purposes of clause (ii) of this paragraph (b), (A) the term "stock"
shall have the same meaning as in Section 243(c)(2) of the Code as in
effect on the date hereof and (B) all shares of stock of the Company held
by Shareholder or any Affiliate of Shareholder shall be treated as if they
were held by a single legal entity. Nothing in this Section 4.3(b) shall
be construed to limit the Company's right to exercise its Call Right at any
time in respect of all the Common Stock held by Shareholder at such time.
(c) Notwithstanding the provisions of Section 4.3(a), the Call
Right shall be suspended and shall not be exercisable by the Company during
the pendency of any transaction described in Section 4.02(a)(iv) following
the time at which the Company shall publicly announce or otherwise disclose
to Shareholder that the Board of Directors of the Company does not oppose
such transaction.
(d) Any purchase of Common Stock by the Company pursuant to
this Section 4.3 shall be on a mutually determined closing date which shall
not be more than 30 days after delivery of the Call Notice. The closing
shall be held at 10:00 a.m., local time, at the principal office of the
Company, or at such other time or place as the parties mutually agree.
(e) On the closing date, Shareholder shall deliver (i)
certificates representing the shares of Common Stock being sold, free and
clear of any lien, claim or encumbrance, and (ii) such other documents,
including evidence of ownership and authority, as the Company may
reasonably request. The Call Price shall be paid by wire transfer of
immediately available funds no later than 2:00 p.m., local time, on the
closing date.
Section 4.4. Right of First Refusal. (a) If Shareholder
desires to transfer any shares of Common Stock (including Common Stock
issuable upon conversion or redemption of the Convertible Preferred Stock)
pursuant to Section 4.2(a)(ii) or shares of Convertible Preferred Stock
pursuant to Section 4.2(a)(iii), Shareholder shall give prompt written notice
(the "Transfer Notice") to the Company of such intention, specifying the
number of shares of Common Stock or Convertible Preferred Stock proposed to be
transferred (the "Offered Shares"). The Transfer Notice shall constitute an
irrevocable offer (the "Offer") by Shareholder to sell to the Company the
Offered Shares at a price (the "Offer Price") equal to (x) in the case of the
Convertible Preferred Stock, the aggregate price specified by Shareholder in
the Transfer Notice and (y) in the case of the Common Stock, the aggregate
Fair Market Value of such Offered Shares on the date of delivery of the
Transfer Notice. The Company shall have the right, exercisable by written
notice given by the Company to Shareholder within 30 days after receipt of
such Transfer Notice, to purchase (or to cause a person or group designated by
the Company to purchase) all, but not a part of, the Offered Shares specified
in such Transfer Notice for cash at the Offer Price by delivery of a notice
(the "Exercise Notice") to Shareholder stating the Company's irrevocable
acceptance of the Offer.
(b) If the Company elects to purchase the Offered Shares, the
closing of the purchase of the Offered Shares shall take place on a mutually
acceptable closing date which shall be not more than 30 days after delivery of
the Exercise Notice. The closing shall be held at 10:00 a.m., local time, at
the principal office of the Company or at such other time or place as the
parties mutually agree.
(c) On the closing date, Shareholder shall deliver (or cause to be
delivered) (i) certificates representing the Offered Shares, free and clear of
any lien, claim or encumbrance, and (ii) such other documents, including
evidence of ownership and authority, as the Company may reasonably request.
The Offer Price shall be paid by wire transfer of immediately available funds
no later than 2:00 p.m., local time, on the closing date.
(d) If the Company fails to elect to purchase the Offered Shares
within the period specified in Section 4.3(a), (i) Shareholder shall be free,
during the period of 90 days following the expiration of such period, to
transfer any portion of or all the Offered Shares pursuant to Section
4.2(a)(ii) or 4.2(a)(iii), as the case may be, and (ii) the Company shall not
be entitled to exercise its Call Right with respect to the Offered Shares
during the period from the date of the Transfer Notice to the end of such
90-day period. Offered Shares not so transferred within such 90-day period
shall again become subject to the procedures provided for in this Section 4.4
and to the Call Right. Notwithstanding the foregoing, in the case of any
proposed transfer of any portion or all of the Offered Shares pursuant to
Section 4.2(a)(ii)(B) under Rule 144 at a price (the "Reduced Offer Price")
less than 95% of the Offer Price, Shareholder shall first offer such Offered
Shares to the Company by notice (oral or written) to the Senior Vice President
and Senior Associate General Counsel of PaineWebber Incorporated made during
regular business hours. The Company shall have the right, exercisable by the
close of business on the immediately following Business Day after receipt of
such notice from Shareholder, to purchase all, but not a part of, such Offered
Shares at the Reduced Offer Price. If the Company does not elect to purchase
such Offered Shares, Shareholder may transfer such Offered Shares under Rule
144 pursuant to Section 4.2(a)(ii)(B) at a price equal to or above the Reduced
Offer Price, provided that any Offered Shares not so transferred within ten
Business Days shall again become subject to the procedures provided for in
this Section 4.4(d).
Section 4.5. Assignment. The Company may assign any of its
rights under Section 4.3 or 4.4 to any person without the consent of
Shareholder; provided that no such assignment shall relieve the Company of any
of its obligations pursuant to Section 4.3 or 4.4. In the event that the
Company elects to exercise a right under Section 4.3 or 4.4, the Company may
specify in its Call Notice or Exercise Notice, as applicable, or thereafter
prior to purchase, another such person as its designee to purchase the Offered
Shares to which such Call Notice or Exercise Notice, as applicable, relates.
ARTICLE 5
Registration Rights
Section 5.1. Registration upon Request. (a) From and after
the first anniversary of the date of effectiveness of this Agreement, Parent
shall have the right to make written demand upon the Company, on not more than
five separate occasions (subject to the provisions of this Section 5.1), to
register under the 1933 Act (i) shares of Redeemable Preferred Stock, (ii)
shares of Common Stock issued to Shareholder pursuant to the Share Purchase
Agreement, acquired upon conversion of the Convertible Preferred Stock, or
acquired in accordance with Section 6.1 of this Agreement or (iii) at any time
after December 16, 1999, shares of Convertible Preferred Stock (the shares
subject to such demand hereunder being referred to as the "Subject Stock"),
and the Company shall use its best efforts to cause such shares to be
registered under the 1933 Act as soon as reasonably practicable so as to
permit the sale thereof promptly; provided that each such demand shall cover
at least (A) $50,000,000 liquidation preference of Redeemable Preferred Stock,
(B) $100,000,000 liquidation preference of Convertible Preferred Stock or (C)
5,000,000 shares of Common Stock, in the case of the first such demand
relating to Common Stock, or 2,500,000 shares of Common Stock in any
subsequent demand relating to Common Stock (subject in each case to adjustment
for stock splits, reverse stock splits, stock dividends and similar events
after the date hereof), as the case may be. In connection therewith, the
Company shall as promptly as practicable prepare, file (on Form S-3 if
permitted or otherwise on the appropriate form) and use its best efforts to
cause to become effective a registration statement under the 1933 Act to
effect such registration. Parent and Shareholder agree to provide all such
information and materials and to take all such action as may be reasonably
required in order to permit the Company to comply with all applicable
requirements of the 1933 Act and the Commission and to obtain any desired
acceleration of the effective date of such registration statement.
(b) Notwithstanding the provisions of Section 5.1(a) and
5.1(c), the Company (i) shall not be obligated to prepare or file more than
one registration statement pursuant to this Section 5.1 during any 12-month
period and (ii) shall be entitled to postpone the filing of any
registration statement otherwise required to be prepared and filed by the
Company pursuant to Section 5.1(a) (A) for a period of up to 60 days
following completion of any underwritten public offering of securities
contemplated by the Company prior to receipt of a demand for registration
hereunder, provided that the Company is advised by its managing underwriter
or underwriters in writing (with a copy to Shareholder), that the price at
which securities would be offered in such offering would, in its or their
opinion, be materially adversely affected by the registration so requested,
or (B) for a period of up to 135 days if the Company determines in its
reasonable judgment and in good faith that the registration and
distribution of the shares of Subject Stock would impair or interfere with
in any material respect any contemplated material financing, acquisition,
disposition, corporate reorganization or other similar transaction or other
material corporate development involving the Company or any of its
subsidiaries or Affiliates or would require premature disclosure thereof,
and such disclosure is not practicable in the Company's reasonable judgment
in light of the facts and circumstances then existing or would impair or
interfere with in any material respect such transaction or would otherwise
materially adversely affect the Company. In the event of such
postponement, Parent shall have the right to withdraw the request for
registration by giving written notice to the Company within 20 days after
receipt of notice of postponement and, in the event of such withdrawal,
such request shall not be counted for purposes of determining the number of
registrations to which Parent is entitled pursuant to this Section 5.1.
(c) In addition to the rights of Parent set forth in Section
5.1(a), if at any time the Company shall exercise its right pursuant to
paragraph (5)(d) of the Certificate of Designation of Rights and Preferences
for the Convertible Preferred Stock to deliver shares of Common Stock in lieu
of cash in payment of the redemption price for any shares of Convertible
Preferred Stock, Parent shall have the right, exercisable within 30 days
following receipt of notice of such redemption for Common Stock, to make an
additional written demand upon the Company to register under the 1933 Act any
or all shares of Common Stock received in connection with such redemption, and
the Company shall use its best efforts to cause such shares to be registered
under the 1933 Act as soon as reasonably practicable so as to permit the sale
thereof promptly, subject to the provisions of Section 5.1(b).
(d) Except in accordance with the provisions of the Amended and
Restated Investment Agreement (the "Yasuda Agreement") dated as of November 5,
1992, between the Company and The Yasuda Mutual Life Insurance Company
("Yasuda"), the Company shall not grant to any other holder of its securities,
whether currently outstanding or issued in the future, any incidental or
piggyback registration rights with respect to any registration statement filed
pursuant to a demand registration under this Section 5.1 and, except as
aforesaid with respect to the rights of Yasuda, without the prior consent of
Parent, the Company will not permit any holder of its securities other than
Yasuda to participate in any offering made pursuant to a demand registration
under this Section 5.1.
Section 5.2. Incidental Registration Rights. If the
Company proposes to register any of its Common Stock under the 1933 Act
(other than (i) pursuant to Section 5.1 hereof, (ii) securities to be
issued pursuant to a stock option or other employee benefit or similar
plan, or (iii) securities proposed to be issued in exchange for securities
or assets of, or in connection with a merger or consolidation with, another
corporation) the Company shall, as promptly as practicable, give written
notice to Parent of the Company's intention to effect such registration.
If, within 15 days after receipt of such notice, Parent submits a written
request to the Company specifying the amount of Common Stock that it
proposes to sell or otherwise dispose of in accordance with this Section
5.2, the Company shall use its best efforts to include the shares specified
in Parent's request in such registration. If in a registration other than
pursuant to Section 2.3 of the Yasuda Agreement, the managing underwriters
reasonably determine in good faith and advise Shareholder in writing that
the inclusion in the registration statement of all the Common Stock
proposed to be included would interfere with the successful marketing and
sale of the securities proposed to be registered, then the amount of Common
Stock to be registered by Parent pursuant to this Section 5.2 shall be
reduced to the amount, if any, determined by the managing underwriters in
good faith that would not interfere with such marketing and sale, provided
that if securities are being offered for the account of any Person other
than the Company, then the amount of securities of such other Person and
Shareholder shall be reduced proportionately based on the number of
securities each such Person requested to be included in the offering. If
in a registration pursuant to Section 2.3 of the Yasuda Agreement, Yasuda
advises the Company that in Yasuda's reasonable judgment registration of
the Shareholder's shares of Common Stock would adversely affect the
offering and sale of its securities under the Yasuda Agreement, then the
number of Shareholder's shares of Common Stock to be included in such
offering shall be reduced to the amount, if any, determined by Yasuda in
its reasonable judgment, that would not adversely affect such offering and
sale. No registration effected under this Section 5.2 shall relieve the
Company of its obligation to effect any registration upon request under
Section 5.1. If Shareholder has been permitted to participate in a
proposed offering pursuant to this Section 5.2, the Company thereafter may
determine either not to file a registration statement relating thereto, or
to withdraw such registration statement, or otherwise not to consummate
such offering, without any liability hereunder.
Section 5.3. Broad Public Distribution; Lead Manager. (a) The
Company shall be required to register Subject Stock that is Common Stock
pursuant to this Article V only if such Common Stock is to be offered and sold
in a Broad Public Distribution.
(b) The Company shall be required to register Subject Stock
pursuant to this Article V only if such Subject Stock is to be offered and
sold in an underwritten distribution lead-managed by the Company's principal
broker-dealer subsidiary, provided that, in the reasonable judgment of Parent,
the proposed terms of offering by such subsidiary are customary and reasonably
competitive and provided further that Parent in all cases shall have the right
to designate a non-book-running co-lead manager for any such offering.
Section 5.4. Registration Mechanics. (a) In connection
with any offering of shares of Subject Stock registered pursuant to Section
5.1 or 5.2 herein, the Company shall (i) furnish to Shareholder such number
of copies of any prospectus (including preliminary and summary
prospectuses) and conformed copies of the registration statement (including
amendments or supplements thereto and, in each case, all exhibits) and such
other documents as it may reasonably request, but only while the Company
shall be required under the provisions hereof to cause the registration
statement to remain current; (ii) (A) use its best efforts to register or
qualify the Subject Stock covered by such registration statement under such
blue sky or other state securities laws for offer and sale as Shareholder
shall reasonably request and (B) keep such registration or qualification in
effect for so long as the registration statement remains in effect;
provided that the Company shall not be obligated to qualify to do business
as a foreign corporation under the laws of any jurisdiction in which it
shall not then be qualified or to file any general consent to service of
process in any jurisdiction in which such a consent has not been previously
filed or subject itself to taxation in any jurisdiction wherein it would
not otherwise be subject to tax but for the requirements of this Section
5.4; (iii) use its best efforts to cause all shares of Subject Stock
covered by such registration statement to be registered with or approved by
such other federal or state government agencies or authorities as may be
necessary in the opinion of counsel to the Company to enable Shareholder to
consummate the disposition of such shares of Subject Stock; (iv) notify
Shareholder any time when a prospectus relating thereto is required to be
delivered under the 1933 Act upon discovery that, or upon the happening of
any event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made, and (subject to the
good faith determination of the Company's Board of Directors as to whether
to permit sales under such registration statement), at the request of
Shareholder promptly prepare and furnish to it a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made; (v) otherwise use
its best efforts to comply with all applicable rules and regulations of the
SEC; (vi) use its best efforts to list, if required by the rules of the
applicable securities exchange or, if securities of the same class are then
so listed, the Subject Stock covered by such registration statement on the
NYSE or on any other securities exchange on which Subject Stock is then
listed; (vii) before filing any registration statement or any amendment or
supplement thereto, and as far in advance as is reasonably practicable,
furnish to Shareholder and its counsel copies of such documents; and (viii)
furnish to Shareholder, addressed to it, an opinion of counsel for the
Company, dated the date of the closing under the underwriting agreement
relating to any underwritten offering covering substantially the same
matters with respect to such registration statement (and the prospectus
included therein) as are customarily covered in opinions of counsel
delivered to underwriters in underwritten public offerings of securities.
(b) In connection with any offering of Subject Stock registered
pursuant to Section 5.1 or 5.2, the Company shall (x) furnish to the
underwriter, if any, unlegended certificates representing ownership of the
Subject Stock being sold in such denominations as requested and (y) instruct
any transfer agent and registrar of the Subject Stock to release any stop
transfer orders with respect to such Subject Stock.
(c) At any time that Parent shall not be entitled to designate a
nominee for election to the Board of Directors pursuant to Section 3.2, in
connection with the preparation and filing of each registration statement
registering Subject Stock under the 1933 Act, the Company will give
Shareholder and the underwriters, if any, and their respective counsel and
accountants (collectively, the "Inspectors"), such reasonable and customary
access to its books and records (collectively, the "Records") and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of Shareholder and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the 1933 Act. Records which the Company reasonably determines to
be confidential and which it notifies the Inspectors in writing are
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary or appropriate to avoid or correct a
misstatement or omission in the registration statement, (ii) the portion of
the Records to be disclosed has otherwise become publicly known, (iii) the
information in such Records is to be used in connection with any litigation or
governmental investigation or hearing relating to any registration statement
or (iv) the release of such Records is ordered pursuant to a subpoena or other
order. Shareholder agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company.
(d) Upon any registration becoming effective pursuant to Section
5.1, the Company shall use its best efforts to keep such registration statement
current for a period of 90 days or such shorter period as shall be necessary to
effect the distribution of the Subject Stock.
(e) Shareholder agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in clause (iv) of
Section 5.4(a), it will forthwith discontinue its disposition of Subject Stock
pursuant to the registration statement relating to such Subject Stock until its
receipt of the copies of the supplemented or amended prospectus contemplated
by clause (iv) of Section 5.3(a) and, if so directed by the Company, will
deliver to the Company all copies then in its possession of the prospectus
relating to such Subject Stock current at the time of receipt of such notice.
If Shareholder's disposition of Subject Stock is discontinued pursuant to the
foregoing sentence, unless the Company thereafter extends the effectiveness of
the registration statement to permit dispositions of Subject Stock by
Shareholder for an aggregate of 90 days, whether or not consecutive, the
registration statement shall not be counted for purposes of determining the
number of registrations to which Shareholder is entitled pursuant to Section
5.1.
Section 5.5. Expenses. In connection with any registration
pursuant to this Article V (i) Shareholder shall pay all agent fees and
commissions and underwriting discounts and commissions related to shares of
Subject Stock being sold by Shareholder and the fees and disbursements of its
counsel and accountants and (ii) the Company shall pay all fees and
disbursements of its counsel and accountants and the expenses (including the
fees of any separate counsel) of any "qualified independent underwriter"
required in accordance with the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. All other fees and expenses in
connection with any registration statement (including, without limitation, all
registration and filing fees, all printing costs, all fees and expenses of
complying with securities or blue sky laws) shall (i) in the case of a
registration pursuant to Section 5.1, be borne by Shareholder and (ii) in the
case of a registration pursuant to Section 5.2, be shared pro rata based upon
the respective market values of the securities to be sold by the Company,
Shareholder and any other holders participating in such offering; provided
that Shareholder shall not pay any expenses relating to work that would
otherwise be incurred by the Company including, but not limited to, the
preparation and filing of periodic reports with the Commission.
Section 5.6. Indemnification and Contribution. In the case
of any offering registered pursuant to this Article V, the Company agrees
to indemnify and hold Shareholder, each underwriter, if any, of the Subject
Stock under such registration and each person who controls any of the
foregoing within the meaning of Section 15 of the 1933 Act, and any
officer, employee or partner of the foregoing, harmless against any and all
losses, claims, damages, or liabilities (including reasonable legal fees
and other reasonable expenses incurred in the investigation and defense
thereof) to which they or any of them may become subject under the 1933 Act
or otherwise (collectively "Losses"), insofar as any such Losses shall
arise out of or shall be based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
relating to the sale of such Subject Stock (as amended if the Company shall
have filed with the SEC any amendment thereof), or 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 or (ii) any untrue
statement or alleged untrue statement of a material fact contained in the
prospectus relating to the sale of such Subject Stock (as amended or
supplemented if the Company shall have filed with the SEC any amendment
thereof or supplement thereto), or the omission or alleged omission to
state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided that the indemnification contained in this Section 5.6
shall not apply to such Losses which shall arise out of or shall be based
upon any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, which shall have been made in reliance upon
and in conformity with information furnished in writing to the Company by
Shareholder or any such underwriter, as the case may be, specifically for
use in connection with the preparation of the registration statement or
prospectus contained in the registration statement or any such amendment
thereof or supplement therein.
Notwithstanding the foregoing provisions of this Section
5.6, the Company will not be liable to Shareholder, any person who
participates as an underwriter in the offering or sale of Subject Stock or
any other person, if any, who controls Shareholder or any underwriter
(within the meaning of the 1933 Act), under the indemnity agreement in this
Section 5.6 for any such Losses that arise out of Shareholder or other
person's failure to send or give a copy of the final prospectus to the
person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the
sale of the Subject Stock to such person if such statement or omission was
corrected in such final prospectus and the Company has previously furnished
copies thereof in accordance with this Agreement.
In the case of each offering registered pursuant to this
Article V, Parent shall, or shall cause General Electric Capital Services,
Inc. or another member of the Financial Services Group, reasonably
satisfactory to the Company (the "Parent Indemnitor") to, agree and each
underwriter, if any, participating therein shall agree, substantially in the
same manner and to the same extent as set forth in the preceding paragraph,
severally to indemnify and hold harmless the Company and each person who
controls the Company within the meaning of Section 15 of the 1933 Act, and any
director, officer, employee or partner of the Company, with respect to any
statement in or omission from such registration statement or prospectus
contained in such registration statement (as amended or as supplemented, if
amended or supplemented as aforesaid) if such statement or omission shall have
been made in reliance upon and in conformity with information furnished in
writing to the Company by Parent, Shareholder or such underwriter, as the case
may be, specifically for use in connection with the preparation of such
registration statement or prospectus contained in such registration statement
or any such amendment thereof or supplement thereto.
Each party indemnified under this Section 5.6 shall, promptly
after receipt of notice of the commencement of any claim against such
indemnified party in respect of which indemnity may be sought hereunder,
notify the indemnifying party in writing of the commencement thereof. The
failure of any indemnified party to so notify an indemnifying party shall not
relieve the indemnifying party from any liability in respect of such action
which it may have to such indemnified party on account of the indemnity
contained in this Section 5.6, unless (and only to the extent) the
indemnifying party was prejudiced by such failure, and in no event shall such
failure relieve the indemnifying party from any other liability which it may
have to such indemnified party. In case any action in respect of which
indemnification may be sought hereunder shall be brought against any
indemnified party and it shall notify an indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it may desire, jointly with any other
indemnifying party similarly notified, to assume the defense thereof through
counsel reasonably satisfactory to the indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 5.6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable costs of investigation (unless (i) such
indemnified party reasonably objects to such assumption on the grounds that
there may be defenses available to it which are different from or in addition
to those available to such indemnifying party, (ii) the indemnifying party and
such indemnified party shall have mutually agreed to the retention of such
counsel or (iii) in the reasonable opinion of such indemnified party
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding, in which case the indemnified party shall be
reimbursed by the indemnifying party for the reasonable expenses incurred in
connection with retaining separate legal counsel). No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any claim or pending or threatened proceeding in respect of
which the indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
arising out of such claim or proceeding.
If the indemnification provided for in this Section 5.6 is
unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless from any Losses in respect of which this Section
5.6 would otherwise apply by its terms (other than by reason of exceptions
provided herein), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative benefits received by and fault of the indemnifying party, on the one
hand, and such indemnified party, on the other hand, in connection with the
offering to which such contribution relates as well as any other relevant
equitable considerations. The relative benefit shall be determined by
reference to, among other things, the amount of proceeds received by each
party from the offering to which such contribution relates. The relative
fault shall be determined by reference to, among other things, each party's
relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, and the opportunity to correct and
prevent any statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any investigation or
proceeding, to the extent such party would have been indemnified for such
expenses if the indemnification provided for in this Section 5.6 was available
to such party.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5.6 were determined by pro
rata allocation or by any other method of allocation that 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 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Section 5.7. Underwriting Agreement. (a) In connection
with any underwritten offering of Subject Stock pursuant to a registration
requested under Section 5.1, the Company, the Parent Indemnitor and
Shareholder will enter into an underwriting agreement with the underwriters
for such offering, such agreement to contain such representations and
warranties by the Company, the Parent Indemnitor and Shareholder and such
other terms and provisions as are customarily contained in the underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Section 5.6 (and customary provisions with respect to
indemnities and contribution by such underwriters).
(b) In connection with any underwritten offering of Subject Stock
pursuant to a registration requested under Section 5.2, the Company may
require the Common Stock requested to be registered pursuant to Section 5.2
to be included in such underwriting on the same terms and conditions as shall
be applicable to Common Stock being sold by the Company through underwriters
under such registration. In such case, the Parent Indemnitor and Shareholder
shall be a party to any such underwriting agreement. Such agreement shall
contain such representations, warranties and covenants by the Parent
Indemnitor and Shareholder and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution to
the effect and to the extent provided in Section 5.6 (and customary provisions
with respect to indemnities and contribution by such underwriters).
ARTICLE 6
Shareholder Purchase Rights
Section 6.1. Shareholder Purchase Rights. (a) If, immediately
after giving effect to and as a result of any issuance of Voting Securities by
the Company, Parent shall beneficially own Common Stock representing less than
the Equity Treatment Percentage of the total number of shares of Common Stock
then outstanding (it being understood for all purposes of this Agreement that
any shares of Common Stock beneficially owned by Xxxxxx, Xxxxxxx & Co.
Incorporated shall not be considered to be outstanding so long as it is a
subsidiary of the Company) and, at such time, Parent accounts for such
ownership of Common Stock in accordance with the equity method of accounting,
Parent shall have the right to acquire, at any time or from time to time
thereafter, in the open market or in private transactions, a number of shares
of Common Stock in the aggregate equal to the excess of (x) the number of
shares representing the Equity Treatment Percentage of the then outstanding
Common Stock over (y) the number of shares of Common Stock then beneficially
owned by Parent (including any shares of Common Stock acquired by Shareholder
pursuant to Section 6.1(b)).
(b) If, immediately after giving effect to and as a result of any
issuance of stock by the Company after the date hereof, the Company shall not
be a 20-percent owned corporation of the Shareholder and immediately prior
thereto the Company was a 20-percent owned corporation of the Shareholder,
Shareholder shall have the right to acquire at any time or from time to time
thereafter, in the open market or in private transactions, a number of shares
of Common Stock sufficient (together with any shares acquired pursuant to
Section 6.1(a)) to enable Shareholder to treat the Company as a 20-percent
owned corporation. For purposes of this paragraph (b), (i) the term "stock"
shall have the same meaning as in Section 243(c)(2) of the Code as in effect
on the date hereof, and (ii) all shares of stock of the Company held by
Shareholder or any Affiliate of Shareholder shall be treated as if they were
held by a single legal entity.
ARTICLE 7
Miscellaneous
Section 7.1. Termination. This Agreement shall terminate upon
(a) the written agreement of the Company, Shareholder and Parent to terminate
this Agreement; or (b) the earlier of (i) December 16, 2009 and (ii) the third
anniversary of the date on which Parent and its Affiliates shall no longer
beneficially own any Voting Securities. The provisions of Articles 3 and 4 of
this Agreement shall terminate upon any failure by the Company to observe and
perform its obligations under Section 3.2.
Section 7.2. Financial Services Group. Notwithstanding any
other provision of this Agreement, nothing contained herein shall apply to any
Voting Securities held in any Third Party Account, and any such Voting
Securities shall not be counted for purposes of this Agreement as being owned
by Parent or any of its Affiliates.
Section 7.3. Legend. (a) All certificates representing
Common Stock subject to this Agreement shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND NEITHER THE
SHARES NOR ANY INTEREST THEREIN MAY BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION UNDER SUCH ACT IS NOT REQUIRED. THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT DATED AUGUST 6, 1997 (A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY)
WHICH PROVIDES, AMONG OTHER THINGS, FOR CERTAIN RIGHTS OF
PURCHASE OF SUCH SHARES BY THE COMPANY AND CERTAIN
RESTRICTIONS ON TRANSFER THEREOF. ANY SALE OR OTHER
TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENT SHALL BE
VOID."
(b) All certificates representing Preferred Stock subject to this
Agreement shall bear the following legend, in addition to the legend (with the
date appropriately completed) which such certificates currently bear (and, on
such date as this Agreement shall become effective, Shareholder will submit
such certificates to the Company to be so legended):
"THE STOCKHOLDERS AGREEMENT DATED AS OF DECEMBER 16, 1994
HAS BEEN AMENDED AND RESTATED EFFECTIVE AUGUST __, 1997.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED
AUGUST 6, 1997 (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY) WHICH PROVIDES, AMONG OTHER
THINGS, FOR CERTAIN RIGHTS OF PURCHASE OF SUCH SHARES BY
THE COMPANY AND CERTAIN RESTRICTIONS ON TRANSFER THEREOF.
ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SAID
AGREEMENT SHALL BE VOID."
Section 7.4. Specific Performance. (a) Parent and
Shareholder, on the one hand, and the Company, on the other, acknowledge and
agree that irreparable damage would occur if any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically its provisions in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
may be entitled at law or in equity.
(b) Parent and Shareholder, on the one part, and the Company,
on the other part, each irrevocably agrees that any legal action or
proceeding against it with respect to this Agreement and any transaction
contemplated by this Agreement 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 by execution and delivery of this Agreement Shareholder,
Parent and the Company each irrevocably submits to the jurisdiction of such
court and irrevocably designates, appoints and empowers the Secretary of
State of the State of New York to receive for and on its behalf service of
process in the State of New York and further irrevocably consents to the
service or process outside of the territorial jurisdiction of such courts
by mailing copies by registered United States mail, postage prepaid, to its
address specified in this Agreement.
Section 7.5. Entire Agreement. The Transaction Documents
(other than the Stockholders Agreement) and the documents referred to therein,
the Share Purchase Agreement and the documents referred to therein and this
Agreement constitute the entire agreement and understanding of the parties
with respect to the transactions contemplated by such parties. This Agreement
may be amended only by an agreement in writing executed by the Company and
Parent.
Section 7.6. Severability. If any provision of this
Agreement is held by a court of competent jurisdiction to be unenforceable,
the remaining provisions shall remain in full force and effect. It is
declared to be the intention of the parties that they would have executed
the remaining provisions without including any that may be declared
unenforceable.
Section 7.7. Headings. Descriptive headings are for
convenience only and will not control or affect the meaning or construction of
any provision of this Agreement.
Section 7.8. Counterparts. For the convenience of the
parties, any number of counterparts of this Agreement may be executed by the
parties, and each such executed counterpart will be an original instrument.
Section 7.9. Notices. All notices, requests, demands and
other communications required or permitted hereunder shall be made in
writing by hand-delivery, registered first-class mail, telex, telecopier or
air courier guaranteeing overnight delivery:
(a) If to the Company, to:
Xxxxx Xxxxxx Group Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
(with copies to):
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: 212-474-3700
(b) If to Shareholder (including any other subsidiary of
Parent to which shares of Common Stock or Preferred Stock are transferred
pursuant to Section 4.2(a)(i)) or Group, to:
General Electric Capital Services, Inc.
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
(with copies to):
Parent
(c) If to Parent, to:
General Electric Company
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Senior Counsel for Transactions
Telecopy: 000-000-0000
(with copies to):
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: 000-000-0000
or to such other person or address as any party shall furnish
to each other party hereto in writing.
All such notices, requests, demands and other communications
shall be deemed to have been duly given: at the time of delivery by hand, if
personally delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Section 7.10. Successors and Assigns. This Agreement shall
bind the successors and assigns of the parties, and inure to the benefit of
any successor or assign of any of the parties; provided that, except as
provided in Section 4.5, no party may assign this Agreement without the other
party's prior written consent.
Section 7.11. Governing Law. This Agreement will be governed
by and construed and enforced in accordance with the internal laws of the
State of New York, without giving effect to the conflict of laws principles
thereof.
Section 7.12. Compliance by Affiliates. Subject to Section
7.2, Parent shall, and shall cause its Affiliates to, observe and perform all
covenants and agreements of Parent and Shareholder set forth in this Agreement
as if such covenants and agreements were directly applicable to Parent and
such Affiliates.
Section 7.13. Reports. So long as Shareholder shall own any
Voting Securities, the Company will furnish Shareholder with the quarterly and
annual financial reports that the Company is required to file with the
Commission pursuant to Section 13 or Section 15(d) of the 1934 Act or, in the
event the Company is not required to file such reports, reports containing the
same information as would be required in such reports.
Section 7.14. Fair Market Value Determination. So long as
Shareholder shall own any Convertible Preferred Stock, if Parent shall
object to any determination of the fair market value of noncash
consideration made by the Board of Directors of the Company in accordance
with paragraph (7)(g)(ii) of the Certificate of Designation of Rights and
Preferences for such Convertible Preferred Stock, the parties shall
negotiate in good faith in order to agree on such fair market value. If
the parties are unable to agree on such fair market value within 30 days,
the Board of Directors of the Company shall retain a nationally recognized
investment banking firm reasonably satisfactory to Parent to determine such
fair market value. The fees and expenses of such investment banking firm
shall be shared equally by Parent and the Company. Parent shall be
notified promptly of any consideration other than cash subject to any such
determination and furnished with a description of the consideration and the
fair market value thereof, as determined by the Board of Directors of the
Company.
Section 7.15. Aggregation; Definition of Shareholder. For
purposes of this Agreement, all shares of Voting Securities and Redeemable
Preferred Stock held by each Shareholder shall be treated as if they were held
by a single legal entity. Each reference to Shareholder, where the context so
requires, shall be deemed to be a reference to Parent or the relevant
subsidiary or subsidiaries of Parent which holds Voting Securities.
Section 7.16. Effectiveness. This Agreement shall become
effective immediately upon consummation of the sale of the capital stock of
Xxxxxx, Xxxxxxx & Co. Incorporated pursuant to the Share Purchase Agreement,
without any further action by any of the parties hereto, and shall be of no
force or effect until such time.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized on the date first above written.
XXXXX XXXXXX GROUP INC.
By: /s/ F. Xxxxxx Xxxxxxx
------------------------------------
Name: F. Xxxxxx Xxxxxxx
Title: Senior Vice President and
Senior Associate General
Counsel
GENERAL ELECTRIC COMPANY
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and Senior
Counsel for Transactions
GENERAL ELECTRIC CAPITAL
SERVICES, INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President and
Controller
GENERAL ELECTRIC
CAPITAL CORPORATION
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President and
Controller
XXXXXX, PEABODY GROUP INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
