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Exhibit 10.16
Registration Rights Agreement
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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
AGREEMENT (this "AGREEMENT"), dated as of March 16, 2001, by and
among TBM Holdings Inc. (the "COMPANY"), a Florida corporation, X.X. XXXXXXX
III, L.P. ("WHITNEY III"), a Delaware limited partnership, X.X. Xxxxxxx XX, L.P.
("XXXXXXX XX"), a Delaware limited partnership, Whitney Strategic Partners III,
L.P. ("WHITNEY STRATEGIC" and together with Whitney III and Xxxxxxx XX,
collectively, the "WHITNEY FUNDS"), a Delaware limited partnership, LEG
Partners, L.P., a Delaware limited partnership ("LEG I"), LEG Partners II, L.P.,
a Delaware limited partnership ("LEG II"), LEG Partners SBIC, L.P., a Delaware
limited partnership ("LEG SBIC"), LEG Partners III SBIC, L.P., a Delaware
limited partnership ("LEG III"), LEG Partners Debenture SBIC, L.P., a Delaware
limited partnership ("LEG DEBENTURES" and together with LEG I, LEG II, LEG SBIC
and LEG III, "XXXXX") and Colt Capital LLC, a Connecticut limited liability
company ("COLT").
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Securities Purchase
Agreement (the "PURCHASE AGREEMENT"), dated as of the date hereof, by and among
the Company, the Whitney Funds and Xxxxx (i) the Whitney Funds will purchase
from the Company 472,254 shares (the "WHITNEY SHARES") of 10% Series B
Cumulative Convertible Preferred Stock, $.001 par value per share, of the
Company (the "SERIES B PREFERRED STOCK") and (ii) LEG III and LEG Debentures
will purchase from the Company 472,254 shares (the "XXXXX SHARES") of Series B
Preferred Stock; and
WHEREAS, the Company and the other parties hereto desire to
provide for the circumstances under which the Company will register securities
of the Company on behalf of such other parties.
NOW, THEREFORE, as an inducement to the Whitney Funds and Xxxxx
to consummate the transactions contemplated by the Purchase Agreement and in
consideration of the premises and of the mutual covenants and obligations
hereinafter set forth, the Company hereby covenants and agrees with the other
parties hereto, and with each subsequent holder of Restricted Securities (as
such term is defined herein), as follows:
SECTION 1. DEFINITIONS. As used herein, the following terms
shall have the following respective meanings:
"ARTICLES OF INCORPORATION" shall mean the Articles of
Incorporation of the Company, as amended, in effect on the date hereof.
"COLT STOCK" shall mean 400,000 shares of Common Stock
held by Colt, as such shares may be adjusted for stock splits, stock
combinations or reclassifications and as such shares may be reduced by
any sales or transfers of such shares by Colt.
"COMMISSION" shall mean the Securities and Exchange
Commission, or any other Federal agency at the time administering the
Securities Act.
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"COMMON STOCK" shall mean, collectively, the shares of
common stock, $.001 par value per share, of the Company, and any class
or series of common stock of the Company authorized after the date
hereof, or any other class or series of stock resulting from successive
changes or reclassifications of any class or series of common stock of
the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"INSTITUTIONAL INVESTORS" shall mean the Whitney Funds,
Xxxxx and their respective successors and assigns.
"MATERIAL TRANSACTION" means any material transaction in
which the Company proposes to engage or is engaged, including a purchase
or sale of assets or securities, financing, merger, consolidation or any
other transaction that would require disclosure pursuant to the
Securities Act or Exchange Act, and with respect to which the Company's
Board of Directors has reasonably determined in good faith that
compliance with this Agreement would require the Company to disclose
material, non-public information prior to such time as it would
otherwise be required to be disclosed.
"PUBLIC OFFERING" shall mean the sale by the Company or
any other person or entity of equity securities of the Company pursuant
to a registration statement on Form S-1 or otherwise under the
Securities Act.
"REGISTRATION EXPENSES" shall mean the expenses so
described in Section 5 hereof.
"RESTRICTED SECURITIES" shall mean the Whitney Shares,
the Xxxxx Shares and the Restricted Stock.
"RESTRICTED STOCK" shall mean the shares of Common Stock
held by the Whitney Funds or Xxxxx, including, without limitation,
shares of Common Stock, into which the Whitney Shares and the Xxxxx
Shares are convertible, and any capital stock or other securities issued
or issuable with respect to such Whitney Shares, Xxxxx Shares or Common
Stock by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, conversion,
consolidation or other reorganization.
"SECURITIES ACT" shall mean the Securities Act of 1933,
as amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"SELLING EXPENSES" shall mean the expenses so described
in Section 5 hereof.
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SECTION 2. REQUIRED REGISTRATION.
(a) At any time and from time to time following the date
January 1, 2002, the Institutional Investors may, by written notice, request
that the Company register under the Securities Act all or any portion of the
shares of Restricted Stock held by such requesting holders (or which would be
held by such requesting holders, upon conversion of the Whitney Shares and the
Xxxxx Shares owned by such requesting holders) for sale in the manner specified
in such notice; provided, however, that the Company shall not be obligated to
register Restricted Stock or Colt Stock pursuant to such request: (i) subject to
Section 3(a) below, during the period beginning 30 days prior to the filing, and
ending on a date 90 days following the effective date, of a registration
statement filed by the Company relating to an underwritten offering only of the
Company's capital stock (other than a registration statement for the Company's
capital stock which does not give rise to incidental registration rights
pursuant to Section 3(a) below) provided that the Company is actively employing
in good faith its reasonable best efforts to cause such registration statement
to become effective; or (ii) if the Company provides a certificate of its
President stating that a Material Transaction exists at the time of the request,
in which event no such registration statement need be filed until the earlier of
the lapse of 90 days from the issuance of such certificate or the date on which
such Material Transaction no longer exists; provided, however, that the Company
may not exercise its right under this clause (ii) more than once in any 12-month
period. Notwithstanding anything to the contrary contained herein, no request
may be made under this Section 2 within 180 days after the effective date of a
registration statement filed by the Company covering a firm commitment
underwritten public offering in which the holders of Restricted Stock or Colt
Stock shall have been entitled to join pursuant to this Section 2 or Section 3
hereof and in which there shall have been effectively registered all shares of
Restricted Stock and Colt Stock as to which registration shall have been so
requested.
(b) Promptly following receipt of any notice under this
Section 2, the Company shall immediately notify Colt (so long as Colt holds any
Colt Stock) and all other Institutional Investors from whom notice has not been
received and shall file and use its reasonable best efforts to have declared
effective a registration statement under the Securities Act for the public sale,
in accordance with the method of disposition specified in such notice from
requesting holders, of the number of shares of Restricted Stock and Colt Stock,
if any, specified in such notice (and in any notices received from other holders
of Restricted Stock within 20 days after the date of such notice from the
Company). If such method of disposition shall be an underwritten public
offering, the Institutional Investors participating in such registration who own
a majority in interest of the Restricted Stock to be included in such
registration by such Institutional Investors may designate the managing
underwriter of such offering, subject to the approval of the Company, which
approval shall not be unreasonably withheld or delayed. In such event, the right
of any holder of Restricted Stock or Colt Stock to include its Restricted Stock
or Colt Stock, as applicable, in such registration shall be conditioned on such
holder's participation in such underwriting and the inclusion of such holder's
Restricted Stock or Colt Stock, as applicable, in the underwriting to the extent
provided herein. The number of shares of Restricted Stock and Colt Stock to be
included in such an underwriting may be reduced (pro rata among all holders
requesting, under this Section 2, to participate in such registration based upon
the number of Shares requested to be registered by each such holder) if and to
the extent that the
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managing underwriter shall be of the opinion that such inclusion would adversely
affect the marketing of the securities to be sold therein. With respect to the
preceding sentence, if the Company elects to reduce pro rata the amount of
Restricted Stock and Colt Stock proposed to be offered in the underwriting, for
purposes of making any such reduction, each holder of Restricted Stock and Colt
Stock which is a partnership, together with the affiliates, partners, employees,
retired partners and retired employees of such holder, the estates and family
members of any such partners, employees, retired partners and retired employees
and of their spouses, and any trusts for the benefit of any of the foregoing
persons shall be deemed to be a single "person", and any pro rata reduction with
respect to such "person" shall be based upon the aggregate number of shares of
Restricted Stock and Colt Stock owned by all entities and individuals included
as such "person," as defined in this sentence (and the aggregate number so
allocated to such "person" shall be allocated among the entities and individuals
included in such "person" in such manner as such holder of Restricted Stock or
Colt Stock, as applicable, may reasonably determine). The Company shall be
obligated to register Restricted Stock and Colt Stock pursuant to requests made
under this Section 2 on two occasions only; provided, however, that as to such
occasion such obligation shall be deemed satisfied only when a registration
statement covering all shares of Restricted Stock and Colt Stock specified in
notices received as aforesaid, for sale in accordance with the method of
disposition specified by the requesting holders, shall have become effective
and, if such method of disposition is a firm commitment underwritten public
offering, all such shares shall have been sold pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 2, for sale in accordance
with the method of disposition specified by the requesting holders, shares of
Common Stock to be sold by the Company for its own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Restricted Stock and Colt Stock to be
sold. Except as set forth in this Section 2, no securities shall be included in
any registration statement referred to in this Section 2 without the prior
written consent of the holders of a majority in interest of the Institutional
Investors' Restricted Stock requested to be included in such registration.
Except with respect to registration statements on Form X-0, X-0 or any successor
thereto, the Company will not file with the Commission any other registration
statement with respect to its Common Stock, whether for its own account or that
of other stockholders, from the date of receipt of a notice from requesting
holders pursuant to this Section 2 until the completion of the period of
distribution of the registration contemplated thereby.
SECTION 3. INCIDENTAL REGISTRATION; FORM S-3 REGISTRATION.
(a) If the Company at any time (other than pursuant to
Section 2 hereof) proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Form X-0, X-0 or another form, which is not available for
registering Restricted Stock for sale to the public), each such time it will
give prompt written notice to all holders of Restricted Stock and Colt Stock of
its intention to do so. Upon the written request of any such holder, given
within 20 days after the date of any such notice, to register any of its
Restricted Stock or Colt Stock (as applicable) (which request shall state the
intended method of
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disposition thereof), the Company will use its reasonable best efforts to cause
the Restricted Stock and Colt Stock as to which registration shall have been so
requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder (in accordance with its
written request) of such Restricted Stock or Colt Stock (as applicable) so
registered. The Company may withdraw any such registration statement before it
becomes effective or postpone the offering of securities contemplated by such
registration statement without any obligation to the holders of any Restricted
Stock or Colt Stock (as applicable). In the event that any registration pursuant
to this Section 3 shall be, in whole or in part, an underwritten public offering
of Common Stock, any request by a holder pursuant to this Section 3 to register
Restricted Stock or Colt Stock (as applicable) shall specify that either (i)
such Restricted Stock or Colt Stock (as applicable) is to be included in the
underwriting on the same terms and conditions as the shares of Common Stock
otherwise being sold through underwriters under such registration or (ii) such
Restricted Stock or Colt Stock (as applicable) is to be sold in the open market
without any underwriting, on terms and conditions comparable to those normally
applicable to offerings of common stock in reasonably similar circumstances. The
number of shares of Common Stock, including, without limitation Restricted Stock
or Colt Stock (as applicable), to be included in such an underwriting may be
reduced (pro rata among the requesting holders of Restricted Stock or Colt Stock
(as applicable)) if and to the extent that the managing underwriter shall be of
the opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein; provided, however, that if any
shares are to be included in such underwriting for the account of any person
other than the Company, the number of shares to be included by any such person
shall be reduced first to zero, if necessary, before any Restricted Stock or
Colt Stock is reduced which such Shares shall be reduced pro rata among all
holders of Restricted Stock and Colt Stock requesting, under this Section 3, to
participate in such registration based upon the number of shares requested to be
registered by each such holder. With respect to the proviso of the preceding
sentence, if the Company elects to reduce pro rata the amount of Restricted
Stock proposed to be offered in the underwriting for the accounts of all persons
other than the Company, for purposes of making any such reduction, each holder
of Restricted Stock which is a partnership, together with the affiliates,
partners, employees, retired partners and retired employees of such holder, the
estates and family members of any such partners, employees, retired partners and
retired employees and of their spouses, and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "person," and any pro rata
reduction with respect to such "person" shall be based upon the aggregate number
of shares of Restricted Stock owned by all entities and individuals included as
such "person", as defined in this sentence (and the aggregate number so
allocated to such "person" shall be allocated among the entities and individuals
included in such "person" in such manner as such holder of Restricted Stock may
reasonably determine).
(b) If, at a time when Form S-3 is available for such
registration, the Company shall receive from any Institutional Investor a
written request or requests that the Company effect a registration on Form S-3
of any of such holder's Restricted Stock, the Company will promptly give written
notice of the proposed registration to all other holders of Restricted Stock and
Colt Stock and, as soon as practicable, use its reasonable best efforts to
effect such registration and all such related qualifications and compliances as
may be requested and as would permit or facilitate the sale and distribution of
all Restricted Stock as are specified
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in such request and any written requests of other holders of Restricted Stock
and Colt Stock given within 20 days after receipt of such notice. The Company
shall not be required to file a registration statement under Form S-3 if it
would not be required to file a registration statement under Section 2 hereof
pursuant to Section 2(a)(ii). The Company shall have no obligation to effect a
registration under this Section 3(b) unless the aggregate offering price of the
securities requested to be sold pursuant to such registration is, in the good
faith judgment of the Company, expected to be equal to or greater than
$1,000,000. Any registration under this Section 3(b) will not be counted as a
registration under Section 2 above. In the event that such registration is an
underwritten offering, the provisions of Section 2(b) (other than the first
sentence thereof) shall apply.
SECTION 4. REGISTRATION PROCEDURES. If and whenever the Company
is required by the provisions of Section 2 or 3 hereof to use its reasonable
best efforts to effect the registration of any shares of Restricted Stock or
Colt Stock under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 2 hereof, shall be on Form X-0, XX-0 or other form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its reasonable best efforts to
cause such registration statement to become and remain effective (provided that
before filing a registration statement or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the holders of a majority of
the Restricted Stock covered by such registration statement copies of all such
documents and include all reasonable comments of such counsel in such document)
for the period of the distribution contemplated thereby (determined as
hereinafter provided);
(b) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for the period specified in Section 4 (a) above and as to comply with
the provisions of the Securities Act with respect to the disposition of all
Restricted Stock and Colt Stock, if any, covered by such registration statement
in accordance with the sellers' intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller and to each underwriter such
number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus and any amendment or supplement
thereto) in conformity with the requirements of the Securities Act and such
other documents as such persons may reasonably request in order to facilitate
the public sale or other disposition of the Restricted Stock and Colt Stock, if
any, covered by such registration statement;
(d) use its reasonable best efforts to register or
qualify the Restricted Stock and Colt Stock, if any, covered by such
registration statement under the securities or blue sky laws of such
jurisdictions as the sellers of Restricted Stock and Colt Stock, if any, or, in
the case of an underwritten public offering, the managing underwriter shall
reasonably request and do any
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and all other acts and things which are reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of the
Restricted Stock and Colt Stock, if any, owned by such seller (provided that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection or (ii) consent to general service of process (i.e., service of
process which is not limited solely to securities law violations) in any such
jurisdiction);
(e) immediately notify each seller and each underwriter
under such registration statement and each underwriter, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus contained
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 then existing and, at the request of any seller, the
Company will promptly prepare a supplement or amendment to such registration
statement so that, as thereafter delivered to the purchasers of such Restricted
Stock and Colt Stock, if any, such registration statement will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
(f) if the offering is underwritten, use its reasonable
best efforts to furnish, at the request of any seller, on the date that
Restricted Stock and Colt Stock, if any, is delivered to the underwriters for
sale pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to such seller, (A) stating that such registration statement
has become effective under the Securities Act, (B) stating that, to the best
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (C) stating that the
registration statement and the related prospectus, and each amendment or
supplement thereof, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder (except that such counsel need not express any opinion
as to financial statements contained therein), (D) containing a 10b-5 opinion in
customary form (if requested by the underwriters) and (E) and to such other
effects as may reasonably be requested by counsel for the underwriters, and (ii)
a letter dated such date from the independent public accountants retained by the
Company, addressed to the underwriters and to such seller, (A) stating that they
are independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to the registration in respect of which such letter is
being given as such underwriters or such seller may reasonably request; and (B)
containing "cold comfort" language covering such matters of the type customarily
covered by "cold comfort" letters as the holders of a majority in nominal value
of the Restricted Stock being sold reasonably request;
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(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors,
employees, public accountants, attorneys and financial advisors to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(h) use its reasonable best efforts to cause all such
Restricted Securities and Colt Stock, if any, to be listed on a recognized U.S.
stock exchange or traded on a U.S. inter-dealer quotation system and, if similar
securities issued by the Company are already so listed, on each securities
exchange or inter-dealer quotation system on which similar securities issued by
the Company are then listed or traded;
(i) provide a transfer agent and registrar for all such
Restricted Securities and Colt Stock, if any, not later than the printing of any
preliminary prospectus;
(j) reasonably assist any underwriter or seller
participating in such registration or offering in its marketing efforts with
prospective investors by causing the Company's officers, directors and employees
to participate in marketing efforts, including "roadshow" presentations in
various major national and international centers, in connection with any
offering;
(k) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission or any other
applicable regulatory authority, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(l) permit any holder, which holder, in its reasonable
judgment based upon advice of counsel, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration statement and to use its reasonable best efforts, subject to the
agreement of the managing underwriter in the case of an underwritten offering,
to cause the insertion therein of material furnished to the Company in writing,
which in the reasonable judgment of such holder and its counsel should be
included and which material has been approved by the Company, such approval not
to be unreasonably withheld or delayed;
(m) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related offering document or suspending
the qualification of any Restricted Securities or Colt Stock, if any, included
in such registration statement or offering document for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
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(n) use its reasonable best efforts to cause such
Restricted Stock or Colt Stock, if any, covered by such registration statement
to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the sellers thereof to consummate the
disposition of such Restricted Stock and Colt Stock, if any, and
(o) take all such other actions as the Institutional
Investors requesting such registration, or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Restricted
Stock and Colt Stock, if any (including, without limitation, effecting a stock
split or a combination of shares).
For purposes of Sections 4(a) and (b) above and of Section 2(c)
hereof, the period of distribution of Restricted Stock and Colt Stock (if any)
in a firm commitment underwritten public offering shall be deemed to extend
until each underwriter has completed the distribution of all securities
purchased by it, and the period of distribution of Restricted Stock and Colt
Stock (if any) in any other registration shall be deemed to extend until the
earlier of the sale of all Restricted Stock and Colt Stock (if any) covered
thereby or six months after the effective date thereof.
In connection with each registration hereunder, the selling
holders of Restricted Stock and Colt Stock, if any, will furnish to the Company
such information with respect to themselves, the Restricted Stock and Colt
Stock, if any, held by them and the proposed distribution by them as shall be
necessary in order to assure compliance with Federal and applicable state
securities laws or to effect any registration, qualification or compliance
referred to in this Agreement.
In connection with each registration pursuant to Sections 2 and
3 hereof covering an underwritten public offering, the Company and the selling
holders of Restricted Securities and Colt Stock, if any, agree to enter into
such customary agreements (including underwriting agreements) as the managing
underwriter selected in the manner herein provided may request in such form and
containing such provisions as are customary in the securities business for such
an arrangement between major underwriters and companies of the Company's size
and investment stature, provided that such agreement shall not contain any such
provision applicable to the Company which is inconsistent with the provisions
hereof.
The Company agrees (i) not to effect any public sale or
distribution of its capital stock or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
registration statement (except as part of such underwritten registration
pursuant to the terms hereof or pursuant to registrations on Forms S-4 or S-8 or
any successor forms), unless the underwriters managing such public offering
otherwise agree, and (ii) to use its reasonable best efforts to cause each
holder of at least 5% (on a fully diluted basis) of its capital stock, or any
securities convertible into or exchangeable or exercisable for its capital stock
(other than in a public offering pursuant to the terms hereof) to agree not to
effect any public sale or distribution (including sales pursuant to Rule 144
under the Securities Act) of any such securities during such period (except as
part of such underwritten offering, if otherwise permitted pursuant to the terms
hereof), unless the underwriters managing such public offering otherwise agree.
If requested in
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writing by the managing underwriter conducting the offering in question, each
holder of Restricted Stock and Colt Stock, if any, agrees not to sell or
otherwise transfer or dispose of any shares of Restricted Stock and Colt Stock,
if any, or other shares of stock of the Company then owned by such holder for a
period reasonably requested by such underwriter which shall in no event exceed
180 days following the effective date of a registration statement of the Company
filed under the Securities Act; provided, however, that all persons holding at
least 5% of the capital stock of the Company and all executive officers and
directors of the Company shall have entered into agreements containing similar
provisions. The Company may impose stop-transfer instructions with respect to
the securities subject to the foregoing restriction.
Any holder of Restricted Stock or Colt Stock, if any, and their
permitted transferees, receiving any written notice from the Company regarding
the Company's plans to file a registration statement shall treat such notice
confidentially and shall not disclose such information to any person other than
as necessary to exercise its rights under this Agreement.
SECTION 5. EXPENSES. All expenses incurred by the Company in
complying with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, fees and expenses of compliance with securities
and blue sky laws, fees and expenses in connection with any listing of the
Common Stock on a securities exchange or inter-dealer quotation system, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, and the fees and disbursements of the underwriters, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars and costs of insurance and fees and expenses of
one counsel for the sellers of Restricted Stock, but excluding any Selling
Expenses (as defined below), are herein called "REGISTRATION EXPENSES". All
underwriting discounts and selling commissions applicable to the sale of
Restricted Stock are herein called "Selling Expenses." The Company will pay all
Registration Expenses in connection with each registration statement filed
pursuant to Section 2 or 3 hereof. All Selling Expenses incurred in connection
with any sale of Restricted Stock by any participating seller shall be borne by
such participating seller, or by such persons other than the Company (except to
the extent the Company shall be a seller) as they may agree.
SECTION 6. INDEMNIFICATION. In the event of a registration of
any of the Restricted Stock and Colt Stock, if any, under the Securities Act
pursuant to Section 2 or 3 hereof, the Company will indemnify and hold harmless
each seller of such Restricted Stock and Colt Stock thereunder and each
underwriter of such Restricted Stock and Colt Stock thereunder and their
respective officers, directors and employees and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act,
against any and all losses, claims, damages, expenses or liabilities, joint or
several, to which such person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Restricted Stock and Colt Stock, if any, was registered under
the Securities Act pursuant to Section 2 or 3, any preliminary prospectus or
final prospectus contained therein, any amendment or supplement thereof, any
materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the Restricted Stock
and Colt Stock, if any, including any roadshow or investor presentations made to
investors
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by the Company (whether in person or electronically), or any application, filing
or other material filed, registered, distributed or otherwise furnished by the
Company or with the consent of the Company in connection with the securities
laws of any state or political subdivision thereof, including any blue sky
application, 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 will reimburse each such person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, expense or
action; provided, however, that the Company will not be liable in any such case
if and to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by any such
person in writing specifically for use in such registration statement or
prospectus.
In the event of a registration of any of the Restricted Stock or
Colt Stock under the Securities Act pursuant to Section 2 or 3 hereof, each
seller of such Restricted Stock or Colt Stock thereunder, severally and not
jointly, will indemnify and hold harmless the Company and each person, if any,
who controls the Company within the meaning of the Securities Act, each officer
of the Company who signs the registration statement, each director of the
Company, each underwriter and each person who controls any underwriter within
the meaning of the Securities Act, against all losses, claims, damages, expenses
or liabilities, to which the Company or such officer or director or underwriter
or controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Restricted Stock and Colt Stock, if any, was registered under
the Securities Act pursuant to Section 2 or 3, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof, 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 will reimburse the Company and each such
officer, director, underwriter and controlling person 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 such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in such registration statement or prospectus; provided,
further, however, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of the shares sold by
such seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not to exceed the net proceeds
received by such seller from the sale of Restricted Stock or Colt Stock (as
applicable) covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof,
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but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party under this Section 6,
except to the extent the indemnifying party is prejudiced by such omission. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election to assume and undertake the defense thereof,
the indemnifying party shall not be liable to such indemnified party under this
Section 6 for any legal expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected; provided, however, that,
if the indemnified party shall have reasonably concluded, based upon advice of
counsel, that there may be reasonable defenses available to it which are
different from or additional to those available to the other party or parties
thereto or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the other party or parties thereto, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party as
incurred. Each indemnified party shall furnish such information as the
indemnifying party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and any litigation or
proceeding resulting therefrom.
Notwithstanding the foregoing, any indemnified party shall have
the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified party as aforesaid, (ii) the indemnified party shall have reasonably
concluded, based upon advice of counsel, that there may be reasonable defenses
available to it which are different from or additional to those available to the
other party or parties thereto or that the interests of the indemnified party
conflict with the interests of the other party or parties thereto, or (iii) the
indemnifying party and such indemnified party shall have mutually agreed to the
retention of such counsel. It is understood that the indemnifying party shall
not, in connection with any action or related actions in the same jurisdiction,
be liable for the fees and disbursements of more than one separate firm
qualified in such jurisdiction to act as counsel for the indemnified party. The
indemnifying party shall not (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), 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, or (ii)be liable for any settlement of any proceeding
effected without its written consent, (which consent shall not be unreasonably
withheld), but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of this Section
6 is unavailable to or insufficient to hold harmless an indemnified party under
such paragraphs in respect of any losses, claims, damages or
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liabilities or actions referred to therein, then each indemnifying party shall
in lieu of indemnifying such indemnified party contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or actions in such proportion as appropriate to reflect the relative
fault of the Company, on the one hand, and the sellers of such Restricted Stock
or Colt Stock, as the case may be, on the other, in connection with the
statement or omissions which resulted in such losses, claims, damages,
liabilities or actions, as well as any other relevant equitable considerations
including, without limitation, the failure to give any notice under the second
paragraph of this Section 6. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or by the
sellers of such Restricted Stock or Colt Stock, as the case may be, on the other
hand, and to the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the sellers of Restricted Stock and Colt Stock,
if any, agree that it would not be just and equitable if contribution pursuant
to this Section 6 were determined by pro rata allocation (even if all of the
sellers of Restricted Stock and Colt Stock, if any, were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or action referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this and the immediately preceding paragraph,
the sellers of such Restricted Stock and Colt Stock, if any, shall not be
required to contribute any amount in excess of the amount, if any, by which the
total price at which the Common Stock sold by each of them was offered to the
public exceeds the amount of any damages which they would have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. 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 is not guilty of such fraudulent misrepresentation. The
indemnification of underwriters provided for in this Section 6 shall be on such
other terms and conditions as are at the time customary and reasonably required
by such underwriters and the indemnification of the sellers of Restricted Stock
and Colt Stock, if any, in such underwriting shall, at the sellers' request, be
modified to conform to such terms and conditions. Upon the reasonable request of
any stockholder selling Restricted Stock pursuant to a registration statement or
any underwriter of such stock, the Company shall obtain, if reasonably
available, an insurance policy covering the risks described above in this
Section 6 in an amount and with a deductible reasonably requested by such seller
or underwriter and naming such seller, any underwriter of such stock and any
person controlling such seller or underwriter as beneficiaries. The costs of
obtaining and maintaining any such insurance shall be borne by the Company.
The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any
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officer, director or controlling person of such indemnified party and will
survive the transfer of securities.
SECTION 7. CHANGES IN COMMON STOCK. If, and as often as, there
are any changes in the Common Stock by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof, as may be required, so that
the rights and privileges granted by this Agreement shall continue with respect
to the Common Stock as so changed.
SECTION 8. OTHER REGISTRATION RIGHTS. Except as provided in this
Agreement, following the issuance of the Series B Preferred Stock, the Company
will not grant to any person the right to request the Company to register any
Common Stock, or any securities convertible or exchangeable into or exercisable
for Common Stock, which are superior to or pari passu with the rights granted to
the Institutional Investors hereunder, without the prior written consent of each
of the Institutional Investors. The Company will not enter into any agreement
inconsistent with the terms of this Agreement.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each of the other parties hereto as follows
(which representations and warranties shall survive the execution and delivery
of this Agreement):
(a) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency of government, the Articles of Incorporation or By-laws of the
Company, or any provision of any indenture, agreement or other instrument to
which it or any of its properties or assets is bound, or conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company or any of its
subsidiaries.
(b) This Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms.
SECTION 10. RULE 144 REPORTING. The Company agrees with each of
the other parties hereto as follows:
(a) The Company shall make and keep current public
information available as those terms are understood and defined in Rule 144
under the Securities Act, at all times after it has become subject to the
Exchange Act.
(b) The Company shall use its reasonable best efforts to
file with the Commission in a timely manner all reports and other documents as
the Commission may prescribe under Section 13(a) or 15(d) of the Exchange Act
and the rules and regulations
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promulgated thereunder at any time after the Company has become subject to such
reporting requirements of the Exchange Act.
(c) The Company shall furnish to each holder of
Restricted Securities forthwith upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 (at any
time from and after 90 days following the effective date of the first
registration statement of the Company for an offering of its securities to the
general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company, and (iii) such other
reports and documents so filed as such holder may reasonably request to avail
itself of any rule or regulation of the Commission allowing a holder of
Restricted Securities or Colt Stock (as applicable) to sell any such securities
without registration.
SECTION 11. MISCELLANEOUS.
(a) The obligations and rights under Sections 2, 3 and 8
shall terminate as to an Institutional Investor or Colt (as applicable) when (i)
such stockholder is no longer an "affiliate" as used in Rule 144 and (ii) such
stockholder is permitted to sell all Restricted Stock or Colt Stock (as
applicable) then held by it pursuant to Rule 144(k).
(b) All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. Without limiting the generality of the foregoing,
the registration rights conferred herein on the holders of Restricted Securities
and Colt Stock shall inure to the benefit of any and all subsequent holders from
time to time of the Restricted Securities and Colt Stock, respectively.
(c) All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier
(with receipt confirmed), courier service or personal delivery:
(i) if to the Company:
TBM Holdings Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, XX
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxxx P.C.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
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Attention: Xxxxxx X. Xxxxxxx, Esq.
(ii) if to the Whitney Funds:
Whitney III, L.P.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Xx. Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxxx Xxxxx, Esq.
Xx. Xxxxxx X. Xxxxx, Esq.
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(iii) if to Xxxxx:
Xxxxx Associates Incorporated
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxxx Xxxxx, Esq.
Xx. Xxxxxx X. Xxxxx, Esq.
(iii) if to Colt:
Colt Capital LLC
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxxx P.C.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other address or addresses as shall have been furnished in writing to
the other parties hereto. Each party hereto agrees, at all times, to provide the
Company with an address for notices hereunder.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; if mailed, five
business days after being deposited in the mail, postage prepaid; or if
telecopied, when receipt is acknowledged.
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(d) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN
ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH
STATE.
(e) (I) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE PERSONAL JURISDICTION
AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND EXPRESSLY WAIVES ANY CLAIM
OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT FORUM. EACH
PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ITS ADDRESS
AND TO THE ATTENTION OF THE PERSON SET FORTH IN SECTION 11(C), SUCH SERVICE TO
BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
(II) THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL WITH
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH PARTY THERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO
IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE
COMPANY (X) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF EITHER OF THE
WHITNEY FUNDS OR XXXXX HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT EITHER OF
THE WHITNEY FUNDS OR XXXXX WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS AND (Y) ACKNOWLEDGES THAT BOTH THE WHITNEY FUNDS
AND XXXXX HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
(f) This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and except as set forth in
the Purchase Agreement and the Transaction Documents (as defined in the Purchase
Agreement), there are no representations or other agreements, except as stated
or referred to herein or therein. This Agreement may not be modified or amended
except in writing signed by all parties hereto. Notwithstanding the foregoing,
any holders of Restricted Stock or Colt Stock may waive any such holder's rights
hereunder without obtaining the consent of any other holder.
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(g) Telefacsimile transmissions of any executed original
document and/or retransmission of any executed telefacsimile transmission shall
be deemed to be the same as the delivery of an executed original. At the request
of any party hereto, the other parties hereto shall confirm telefacsimile
transmissions by executing duplicate original documents and delivering the same
to the requesting party or parties. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) The Company (on the one hand) and the Institutional
Investors (on the other hand) agree that any amendment to the Federal securities
laws (and regulations promulgated thereunder (and related registration forms),
and related state securities laws shall not affect the substantive registration
requirements (and other obligations of the Company) set forth in this Agreement;
and, following any such amendment, the Company shall continue to be required to
cause the registration of Restricted Stock (and pay all Registration Expenses
and provide indemnification) under the Federal securities laws, as amended, in a
manner consistent to carry out the intent and purposes of (and on terms as
similar as practicable as the terms set forth in) this Agreement.
(i) If any one or more of the provisions contained in
this Agreement, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions of this Agreement. The parties hereto
further agree to replace such invalid, illegal or unenforceable provision of
this Agreement with a valid, legal and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of such
invalid, illegal or unenforceable provision.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first above written.
TBM HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
X.X. XXXXXXX XX, L.P.
By: X.X. Xxxxxxx Equity Partners IV, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Managing Member
X.X. XXXXXXX III, L.P.
By: X.X. Xxxxxxx Equity Partners III, L.L.C.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: X.X. Xxxxxxx Equity Partners III, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Managing Member
LEG PARTNERS III SBIC, L.P.
By: Xxxxx XX-XX, LLC,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------
Xxxxxxxx X. Xxxxx, President
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LEG PARTNERS DEBENTURE SBIC, L.P.
By: Xxxxx XX-XX, LLC,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx, President
COLT CAPITAL LLC
By: Colt Services, Inc.
its Manager
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
LEG PARTNERS, L.P.
By: LEG GP, L.P.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxx, President
LEG PARTNERS SBIC, L.P.
By: Xxxxx XX II Corporation,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxx, President
LEG PARTNERS II, L.P.
By: Xxxxx XX II, L.L.C.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxx, Manager
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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