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SHAREHOLDERS AGREEMENT
BY AND AMONG
TRIMAS CORPORATION,
METALDYNE COMPANY LLC,
THE HEARTLAND ENTITIES LISTED ON THE
SIGNATURE PAGES HERETO, AND
THE OTHER SHAREHOLDERS NAMED HEREIN OR ADDED
AS PARTIES HERETO FROM TIME TO TIME
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DATED AS OF JUNE 6, 2002
AS AMENDED AND RESTATED AS OF JULY 19, 2002
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Definitions...........................................1
SECTION 1.02. Rules of Construction.................................7
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Authority; Enforceability.............................8
SECTION 2.02. No Breach.............................................8
SECTION 2.03. Consents..............................................8
SECTION 2.04. Share Ownership.......................................9
SECTION 2.05. No Post-Closing Breach................................9
ARTICLE III
SHARE TRANSFERS
SECTION 3.01. Restrictions on Transfer..............................9
SECTION 3.02. Exceptions to Restrictions...........................10
SECTION 3.03. Improper Transfer....................................10
SECTION 3.04. Restrictive Legend...................................10
ARTICLE IV
RIGHTS OF CERTAIN SHAREHOLDERS
SECTION 4.01. Rights of First Offer................................11
SECTION 4.02. Tag-Along Rights.....................................13
SECTION 4.03. Drag-Along Rights....................................15
SECTION 4.04. Information..........................................16
SECTION 4.05. Preemptive Rights....................................18
SECTION 4.06. Board of Directors...................................20
SECTION 4.07. Transaction with Affiliates..........................22
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ARTICLE V
REGISTRATION RIGHTS
SECTION 5.01. Company Registration.................................23
SECTION 5.02. Demand Registration Rights...........................24
SECTION 5.03. Registration Procedures..............................28
SECTION 5.04. Registration Expenses................................33
SECTION 5.05. Indemnification......................................33
SECTION 5.06. 1934 Act Reports.....................................36
SECTION 5.07. Holdback Agreements..................................36
SECTION 5.08. Participation in Registrations.......................37
SECTION 5.09. Remedies.............................................37
SECTION 5.10. Other Registration Rights............................37
SECTION 5.11. Rule 144.............................................38
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices..............................................38
SECTION 6.02. Binding Effect; Benefits; Entire Agreement...........38
SECTION 6.03. Waiver...............................................39
SECTION 6.04. Amendment............................................39
SECTION 6.05. Assignability........................................39
SECTION 6.06. Applicable Law.......................................39
SECTION 6.07. Specific Performance.................................40
SECTION 6.08. Severability.........................................40
SECTION 6.09. Additional Securities Subject to Agreement...........40
SECTION 6.10. Section and Other Headings...........................40
SECTION 6.11. Counterparts.........................................40
SECTION 6.12. Termination of Certain Provisions....................40
SECTION 6.13. ERISA Matters........................................41
SECTION 6.14. Regulatory Cooperation...............................41
SECTION 6.15. Publicity............................................41
SECTION 6.16. MCLLC Securities.....................................42
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SHAREHOLDERS AGREEMENT
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THIS AGREEMENT (the "Agreement"), dated as of June 6, 2002, and amended and
restated as of July 19, 2002, by and among TRIMAS CORPORATION, a Delaware
corporation (the "Company"), METALDYNE COMPANY, LLC, a Delaware limited
liability company ("MCLLC"), Masco Capital Corporation, a Delaware corporation,
hIP Side-by-Side Partners, L.P., a Delaware limited partnership, the Heartland
entities listed on the signature pages hereto and the other Shareholders listed
on the signature pages hereto (each of Sponsor, MCLLC, Masco Capital
Corporation, HIP Side-by-Side Partners, L.P., the other shareholders party
hereto and each other Person executing a Joinder Agreement after the date
hereof, individually a "Shareholder" and together the "Shareholders").
WHEREAS, each Shareholder listed on Schedule 2.04, other than MCLCC, has
purchased (the "Stock Purchase") shares of the Company's common stock, $.01 par
value (the "Common Stock") on the original date hereof or on the date of the
amendment and restatement.
WHEREAS, as a result of and in connection with the Stock Purchase, each
Shareholder owns the number of shares of Common Stock set forth on Schedule 2.04
hereto.
WHEREAS, the parties hereto desire to enter into this agreement to provide
for certain rights and restrictions with respect to the Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties mutually agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"ADJUSTMENTS" means adjustments to the number of shares of Common Stock
outstanding as a result of a stock split, stock dividend, reclassification,
subdivision or reorganization, recapitalization or similar event.
"ADVICE" see Section 5.03(p).
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such speci-
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fied Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGREEMENT" see the recitals to this Agreement.
"ASSIGNEE" see Section 4.01(c).
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
"CAPITAL STOCK" means, with respect to any Person, except as otherwise
provided in Section 4.05, any and all shares, interests, participations, rights
in or other equivalents (however designated) of such Person's capital stock, and
any rights (other than debt securities convertible into capital stock), warrants
or options exchangeable or exercisable for or convertible into such capital
stock.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" see the recitals to this Agreement.
"COMPANY" see the recitals to this Agreement.
"COMPANY OPTION PERIOD" see Section 4.01(b).
"CONVERTIBLE SECURITY" see Section 6.16(b).
"DEMAND CONDITIONS" see Section 5.02(b).
"DEMAND HOLDERS" means MCLLC (on behalf of itself and its Direct Permitted
Transferees) or Sponsor (on behalf of itself and its Direct Permitted
Transferees).
"DEMAND REGISTRATION" see Section 5.02(a).
"DIRECT PERMITTED TRANSFEREE" means
(i) with respect to any Shareholder who is a natural person, (1) the
spouse or any lineal descendant (including by adoption and stepchildren) of
such Shareholder, (2) any trust of which such Shareholder is the trustee
and which is established solely for the benefit of any of the foregoing
individuals or (3) any partnership, all of the
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general partner(s) and limited partner(s) (if any) of which are one or more
Persons identified in this clause (i);
(ii) with respect to Sponsor, any Affiliate of Sponsor;
(iii) with respect to MCLLC, Metaldyne and any controlled Affiliate of
Metaldyne (including any wholly-owned subsidiary of Metaldyne);
(iv) with respect to any Institutional Shareholder, any Affiliate of
such Institutional Shareholder; and
(v) with respect to any Shareholder, any institutional lender to which
such Shareholder pledges or grants a security interest in shares of Common
Stock in a bona fide transaction effected in good faith, provided that (x)
such pledgee executes a Joinder Agreement and (y) prior to any subsequent
foreclosure or sale of such shares or any Transfer resulting from such
foreclosure is effected, the provisions of Section 4.01 must be satisfied.
"ELIGIBLE OFFERING" see Section 4.05(a).
"FIRST OPTION" see Section 4.01(b).
"GAAP" means United States generally accepted accounting principles
consistently applied throughout the specified period.
"HEARTLAND ENTITIES" means Heartland Industrial Partners, L.P., Heartland
Industrial Partners (FF), L.P., Heartland Industrial Partners (K1), L.P.,
Heartland Industrial Partners (C1), L.P., HIP Side-by-Side Partners, L.P. and
Direct Permitted Transferees of any of the foregoing.
"HOLDER" means any Demand Holder or Incidental Demand Holder.
"INCIDENTAL DEMAND HOLDER" see Section 5.02.
"INITIAL PUBLIC OFFERING" means either (x) an underwritten initial public
offering of Common Stock pursuant to an effective registration statement filed
under the 1933 Act (excluding registration statements filed on Form S-8, or any
similar successor form or another form used for a purpose similar to the
intended use for such forms) or (y) the listing of the Common Stock on a
national securities exchange or authorization for quotation on the Nasdaq
National Market System.
"INSTITUTIONAL SHAREHOLDER" means any Shareholder that is not a natural
person (other than Sponsor).
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"INVESTOR'S NOTICE" see Section 4.01(a).
"IPO PRIMARY DEMAND" see Section 5.02(a).
"JOINDER AGREEMENT" means a joinder agreement, a form of which is attached
hereto as Exhibit A.
"METALDYNE" means Metaldyne Corporation.
"METALDYNE SHAREHOLDERS AGREEMENT" means that certain shareholders
agreement dated November 28, 2000 as amended, between Metaldyne and the
shareholders thereto.
"1933 ACT" means the Securities Act of 1933.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"OFFERED SHARES" see Section 4.01(a).
"PERMITTED TRANSFEREE" means
(i) with respect to any Shareholder who is a natural person, (1) the
spouse or any lineal descendant (including by adoption and stepchildren) of
such Shareholder, (2) any trust of which such Shareholder is the trustee
and which is established solely for the benefit of any of the foregoing
individuals, (3) any charitable foundation selected by such Shareholder, or
(4) any partnership, all of the general partner(s) and limited partner(s)
(if any) of which are one or more Persons identified in this clause (i),
provided that, in the case of clauses (1), (2), (3) or (4), such Person
executes a Joinder Agreement;
(ii) with respect to Sponsor, (1) any investor in Sponsor or an
Affiliate of such investor in Sponsor or an investor in any fund or other
investment vehicle established or managed by Sponsor or any of its
controlled Affiliates or any other Person which is an Affiliate of Sponsor
on the date hereof, (2) any of the Shareholders and any of their respective
Affiliates, (3) any controlled Affiliate of Sponsor, and (4) any investor
in Sponsor that is an investment fund in connection with a pro rata
distribution of shares of Common Stock to all investors in Sponsor at the
time of the expiration or termination of the fund, provided that, in the
case of clauses (1), (2), (3) or (4), any such Person executes a Joinder
Agreement; and provided, further, that, in the case of the preceding
clauses (1), (2), (3) or (4), Transfers to such Persons would not cause
Sponsor to own, together with its Affiliates (other than Metaldyne or any
of its sub-
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sidiaries), a number of shares equal to less than thirty-five percent (35%)
of the outstanding shares of Common Stock after giving effect to any such
Transfer;
(iii) with respect to MCLLC, any controlled Affiliate of Metaldyne
(including any wholly-owned subsidiary of MCLLC), provided that such Person
executes a Joinder Agreement;
(iv) with respect to any Institutional Shareholder, (1) any Affiliate
of such Institutional Shareholder, (2) any investor of such Institutional
Shareholder that is an investment fund in connection with a pro rata
distribution of shares of Common Stock to all investors in such
Institutional Shareholder at the time of the expiration or termination of
the fund, or (3) any Person acquiring all or substantially all of the
investment portfolio of such Institutional Shareholder; and provided,
further, that, in the case of clause (1), (2) or (3), all such Persons
execute a Joinder Agreement; and
(v) with respect to any Shareholder, any institutional lender to which
such Shareholder pledges or grants a security interest in shares of Common
Stock in a bona fide transaction effected in good faith, provided that (x)
such pledgee executes a Joinder Agreement and (y) prior to any subsequent
foreclosure or sale of such shares or any Transfer resulting from such
foreclosure is effected, the provisions of Section 4.01 must be satisfied.
"PERSON" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government, a political
subdivision or an agency or instrumentality thereof.
"PIGGYBACK HOLDER" see Section 5.01(a).
"PIGGYBACK REGISTRATION" see Section 5.01(a).
"PRO RATA PORTION" means, with respect to shares of Common Stock held by a
Shareholder at any date of determination such number of shares of Common Stock
owned by such Shareholder as would result in such Shareholder selling the same
percentage of the total number of shares of Common Stock held by such
Shareholder in the Transfer subject to the applicable Transfer Notice (the
"Subject Sale") as the Sponsor Transferor sells in the Subject Sale (assuming,
with respect to the Transfer Notice, that all Shareholders have exercised their
Tag-Along Right).
"PURCHASER" see Section 4.02(a).
"QUALIFYING PUBLIC EQUITY OFFERING" means either (x) one or more
underwritten public offerings of Common Stock pursuant to an effective
registration statement filed un-
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der the 1933 Act (excluding registration statements filed on Form S-8, or any
similar successor form) resulting in aggregate gross proceeds to the Company of
$100,000,000 or more or (y) the listing of the Common Stock on a national
securities exchange or authorization for quotation on the Nasdaq National Market
System for which there is a public float of at least $100,000,000 held by
non-Affiliates of the Company.
"REGISTRABLE SECURITIES" shall mean any of (i) the shares of Common Stock
owned by any Shareholder at the time of determination and (ii) any other
securities issued or issuable with respect to the Common Stock by way of a stock
split, stock dividend, reclassification, subdivision or reorganization,
recapitalization or similar event. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the offering of such securities by the holder thereof
shall have been declared effective under the 1933 Act and such securities shall
have been disposed of by such holder pursuant to such registration statement,
(b) such securities have been sold to the public pursuant to Rule 144 (or any
similar provision then in force) promulgated under the 1933 Act, (c) except for
purposes of Section 5.02, such securities shall have been otherwise transferred
and new certificates for such securities not bearing a legend restricting
further transfer shall have been delivered by the Company or its transfer agent
and subsequent disposition of such securities shall not require registration or
qualification under the 1933 Act or any similar state law then in force or (d)
such securities shall have ceased to be outstanding.
"REGISTRATION" see Section 5.03.
"REPRESENTATIVES" means the officers, employees, directors and agents of
such Shareholder, including representatives of its legal, accounting and
financial advisors.
"REQUEST NOTICE" see Section 5.02(a).
"SECOND OPTION" see Section 4.01(c).
"SECONDARY DEMAND REGISTRATION" see Section 5.02(a).
"SHAREHOLDERS" see the recitals to this Agreement.
"SIGNIFICANT SUBSIDIARY" means any subsidiary of the Company that would be
a "significant subsidiary" as such term is defined in Rule 1.02 of Regulation
S-X under the 1933 Act.
"SPONSOR" means collectively the Heartland Entities or Heartland Industrial
Partners, L.P. acting on behalf of the other Heartland Entities.
"SPONSOR OPTION PERIOD" see Section 4.01(c).
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"SUBSTANTIAL CHANGE OF CONTROL" means the sale, lease or transfer in one or
a series of related transactions of at least a majority of the consolidated
assets of the Company and its subsidiaries or a majority of the Capital Stock of
the Company representing the right to vote for directors to any Person or
"group" of Persons (other than Sponsor and its Affiliates) whether direct or
indirect or by way of any merger, consolidation or other business combination or
purchase of beneficial ownership or otherwise.
"TRANSACTIONS" has the meaning set forth in the TriMas Purchase Agreement.
"TRANSFER" means the direct or indirect offer, sale, donation, assignment
(as collateral or otherwise), pledge, hypothecation, encumbrance, transfer or
disposition of any security.
"TRANSFER NOTICE" see Section 4.02(a).
"TRANSFEREE" means any Person who acquires shares of Common Stock from a
Shareholder and who is not a Permitted Transferee.
"TRIGGERING EVENT" means the earlier of (i) the fourth anniversary of the
date hereof, provided the Demand Conditions are satisfied, and (ii) the 180th
day after an Initial Public Offering.
"TRIMAS PURCHASE AGREEMENT" means the Stock Purchase Agreement dated as of
May 17, 2002 among the Company, Metaldyne and Heartland Industrial Partners,
L.P.
SECTION 1.02. Rules of Construction. For purposes of this Agreement
whenever a threshold for the dollar amount of cash invested in Common Stock or
the percentage of ownership of Common Stock is to be determined as to a
Shareholder, the cash investments and the beneficial ownership of Direct
Permitted Transferees of such Shareholder shall be aggregated with the cash
investments and beneficial ownership of such Shareholder and the cash
investments and the beneficial ownership of the Heartland Entities will be
deemed to be aggregated; provided that in no event shall the cash investments
and beneficial ownership of MCLLC and Sponsor be deemed aggregated for such
purposes.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each of the parties hereby severally represents and warrants to each of the
other parties as follows as of the original date hereof and as of the amendment
and restatement:
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SECTION 2.01. Authority; Enforceability. Such party has the
legal capacity or corporate power and authority to enter into this Agreement and
to carry out its obligations hereunder. Such party (in the case of parties that
are not natural persons) is duly organized and validly existing under the laws
of its jurisdiction of organization, and the execution of this Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by all necessary action. No other act or proceeding, corporate or otherwise, on
its part is necessary to authorize the execution of this Agreement or the
consummation of any of the transactions contemplated hereby. This Agreement has
been duly executed by such party and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with the terms of this
Agreement, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the rights of creditors generally and to the
exercise of judicial discretion in accordance with general principles of equity
(whether applied by a court of law or of equity).
SECTION 2.02. No Breach. Neither the execution of this
Agreement nor the performance by such party of its obligations hereunder nor the
consummation of the transactions contemplated hereby or by the Transactions does
or will
(a) in the case of parties that are not natural persons,
conflict with or violate its certificate of incorporation, bylaws or
other organizational documents;
(b) violate, conflict with or result in the breach or
termination of, or otherwise give any other person the right to
accelerate, renegotiate or terminate or receive any payment or
constitute a default or an event of default (or an event which with
notice, lapse of time, or both, would constitute a default or event of
default) under the terms of, any material contract or agreement to
which it is a party or by which it or any of its assets or operations
are bound or affected; or
(c) constitute a violation by such party of any laws,
rules or regulations of any governmental, administrative or regulatory
authority or any judgments, orders, rulings or awards of any court,
arbitrator or other judicial authority or any governmental,
administrative or regulatory authority.
SECTION 2.03. Consents. (a) No consent, waiver, approval,
authorization, exemption, registration, license or declaration is required to be
made or obtained by such party, other than those which have been made or
obtained, in connection with (i) the execution or enforceability of this
Agreement or (ii) the consummation of any of the transactions contemplated
hereby or by the Transactions.
(b) The Company represents and warrants that no consent,
waiver, approval, authorization, exemption, registration, license or declaration
is required to be made or obtained, other than those which have been made or
ob-
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tained, in connection with the July 19, 2002 amendment and restatement of this
Agreement.
SECTION 2.04. Share Ownership. (a) The Company represents and
warrants that in the case of a Shareholder, such party owns, as of the amendment
and restatement, the number of shares of Capital Stock of the Company set forth
opposite such party's name in Schedule 2.04 attached hereto, free and clear of
any and all liens, claims and encumbrances, other than those created by this
Agreement.
(b) The Company represents and warrants that, as of the
original date hereof after giving effect to the Transactions and as of the
amendment and restatement, the authorized capital stock of the Company consists
of (A) 400,000,000 shares of Common Stock, of which 20,000,000 shares of Common
Stock are issued and outstanding, and (B) 100,000,000 shares of preferred stock,
of which no shares of preferred stock are issued and outstanding. Except as
provided for in this Agreement and the TriMas Purchase Agreement, no
subscription, warrant, option, convertible or exchangeable security or other
right to purchase or acquire any shares of Capital Stock of the Company is
authorized or outstanding and the Company has no obligation to issue any
subscription, warrant, option, convertible or exchangeable security or other
such right.
(c) The Company represents and warrants that the shares of
Common Stock issued to each Shareholder in connection with the TriMas Purchase
Agreement were duly and validly authorized, and when issued to each Shareholder
in connection with the TriMas Purchase Agreement, were duly and validly issued,
fully paid and non-assessable and such shares are not subject to preemptive or
similar rights except as provided by this Agreement.
SECTION 2.05. No Post-Closing Breach. The Company represents
and warrants that neither the Company, nor to the best of the Company's
knowledge after due inquiry, Metaldyne, is in breach, violation or default of
any post-closing covenants contained in the TriMas Purchase Agreement other than
such breaches, violations or defaults which do not or would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
(as defined in the TriMasPurchase Agreement) on the Company.
ARTICLE III
SHARE TRANSFERS
SECTION 3.01. Restrictions on Transfer. During the term of
this Agreement, each Shareholder agrees that it will not Transfer any Common
Stock, except as permitted by or in accordance with this Agreement.
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SECTION 3.02. Exceptions to Restrictions. Subject to all
applicable laws, the restrictions on Transfer set forth in Section 3.01 hereof
shall not apply to any of the following:
(a) a Transfer by a Shareholder of Common Stock to one of its
Permitted Transferees; provided that such Permitted Transferee shall
agree to execute a Joinder Agreement in the form annexed hereto as
Exhibit A (the "Joinder Agreement");
(b) a Transfer of Common Stock by a Shareholder in accordance
with Sections 4.02 and 4.03 of this Agreement;
(c) a Transfer by a Shareholder after such Shareholder has
complied with Section 4.01; provided that the Transferee shall agree to
execute a Joinder Agreement;
(d) a Transfer of Common Stock by a Shareholder pursuant to an
effective registration statement under the 1933 Act or a Transfer
pursuant to Rule 144 under the 1933 Act; and
(e) a Transfer by MCLLC in connection with the issuance of a
Convertible Security as contemplated by Section 6.16; provided that the
recipient of such Convertible Security agrees to execute a Joinder
Agreement as described in Section 6.16.
SECTION 3.03. Improper Transfer. Any attempt to Transfer any
shares of Common Stock not in accordance with this Agreement shall be null and
void and the Company will not give nor permit the Company's transfer agent to
give any effect to such attempted Transfer in its stock records.
SECTION 3.04. Restrictive Legend. Each certificate
representing shares of Common Stock and held by a Shareholder will bear a legend
substantially similar to the following (with such additions thereto or changes
therein as the Company may be advised by counsel are required by law or
necessary to give full effect to this Agreement):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE UNITED STATES SECURITIES ACT OF 1933 OR (ii) AN APPLICABLE
EXEMPTION FROM REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE
(ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
TERMS AND CONDITIONS, INCLUDING WITH RESPECT TO THE DIRECT OR INDIRECT
TRANSFER THEREOF, OF A SHAREHOLDERS AGREEMENT DATED AS OF JUNE 6, 2002,
AS AMENDED AND RESTATED AS OF JULY 19, 2002. THE SHAREHOLDERS AGREEMENT
CONTAINS, AMONG OTHER THINGS, SIGNIFICANT RESTRICTIONS ON TRANSFER OF
THE SECURITIES OF THE COMPANY. A COPY OF THE SHAREHOLDERS AGREEMENT IS
AVAILABLE UPON REQUEST FROM THE COMPANY."
ARTICLE IV
RIGHTS OF CERTAIN SHAREHOLDERS
SECTION 4.01. Rights of First Offer. (a) At any time or from
time to time prior to a Qualifying Public Equity Offering, in the event that a
Shareholder (other than Sponsor and its Affiliates) desires to Transfer all or
part of its Common Stock (such shares being the "Offered Shares" and such
proposed Shareholder transferor being the "Offeror"), other than pursuant to
Section 3.02(a), 3.02(d), 4.02 or 4.03 of this Agreement, such Shareholder shall
give prompt written notice (an "Investor's Notice") of its desire to sell the
Offered Shares to the Company and Sponsor. The Investor's Notice shall identify
(x) the number of Offered Shares and (y) all other material terms and conditions
of the proposed Transfer including the purchase price and the form of the
consideration.
(b) The Company shall have the right, but not the
obligation, to purchase all, but not less than all, the Offered Shares (the
"First Option") on the same terms and conditions as set forth in the Investor's
Notice, which option shall be exercised by delivering to such Shareholder
irrevocable written notice of its commitment to purchase the Offered Shares
within fifteen (15) business days after receipt of the Investor's Notice (the
"Company Option Period"). Failure by the Company to give such notice within such
fifteen (15) business day period shall be deemed an election by the Company not
to purchase the Offered Shares.
(c) In the event that the Company decides not to purchase
the Offered Shares pursuant to Section 4.01(b), then Sponsor shall have the
right, but not the obligation, to purchase all, but not less than all, the
Offered Shares (the "Second Option") on the same terms and conditions as set
forth in the Investor's Notice, which option shall be exercised by delivering to
such Shareholder irrevocable written notice of its commitment to purchase the
Offered Shares within ten (10) business days after the termination of the
Company Option Period (the "Sponsor Option Period"); provided that Sponsor may,
at its sole option, but subject to following the procedures of the next sentence
(if applicable), assign its rights to purchase Offered Shares pursuant to this
Section 4.01 to another Shareholder or a Permitted Transferee of
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Sponsor (such person an "Assignee"). If a proposed Assignee is a Shareholder
(other than an Affiliate of Sponsor) as of the date of the Investor's Notice,
then Sponsor shall offer each Shareholder (other than the Offeror, but including
the proposed Assignee) the right, but not the obligation, to purchase not less
than its percentage equivalent of a fraction, the numerator of which is the
number of such Shareholder's shares of Common Stock and the denominator of which
is the aggregate number of all shares of Common Stock owned by Shareholders
(other than the Offeror) each as of the date of the Investor's Notice, of the
Offered Shares on the same terms and conditions as set forth in the Investor's
Notice. Nothing shall preclude Sponsor from retaining its relative share of the
Offered Shares if it so elects. Failure by Sponsor or its Assignee to give such
notice within such ten (10) business day period shall be deemed an election by
Sponsor or its Assignee not to purchase the Offered Shares.
In the event that a Heartland Entity (other than the Company
and its subsidiaries) acquires shares of Common Stock (or the existing warrant
therefor) from MCLLC (but not any transferee thereof other than a Direct
Permitted Transferee of MCLLC), it shall promptly give written notice thereof to
each Shareholder (other than MCLLC and its Direct Permitted Transferees) (each
an "Offeree" and collectively the "Offerees"), and each Offeree shall have the
right, but not the obligation, to purchase from such Heartland Entity not less
than the percentage equivalent of a fraction, the numerator of which is the
number of shares of such Offeree's Common Stock and the denominator of which is
the total number of shares of Common Stock owned by Offerees and the Heartland
Entities immediately before such Heartland Entity acquired such Common Stock (or
the existing Warrant therefor) from MCLLC or a Direct Permitted Transferee
thereof, of such Common Stock at the same price as paid by the applicable
Heartland Entity. Nothing herein shall preclude any Heartland Entity from
retaining or receiving its relative share of the Common Stock (or the existing
warrant therefor) acquired from MCLLC or a Direct Permitted Transferee thereof.
Each Shareholder's right to purchase Common Stock pursuant to this paragraph
shall be for ten (10) business days after the notice referred to earlier in this
paragraph is given by such Heartland Entity.
(d) Delivery of written notice by the Company, Sponsor or
its Assignee accepting the First Option or the Second Option, as the case may
be, shall constitute a contract between the Company, Sponsor or its Assignee, on
the one hand, and such Shareholder on the other hand, for the purchase and sale
of the Offered Shares on the terms and conditions set forth in the Investor's
Notice. The purchase of any Offered Shares pursuant to the exercise of the First
Option or the Second Option, as the case may be, shall be completed not later
than forty-five (45) days following receipt of the Investor's Notice with
respect to the Offered Shares, subject to receipt of any required material
third-party or governmental approvals, compliance with applicable laws and the
absence of any injunction or similar legal order preventing such transaction
(collectively, the "Conditions") in which case the purchase of the Offered
Shares shall be delayed pending the satisfaction of the Conditions up to an
additional thirty (30) days. As a condition to entering into the contract
referred to above, the Company,
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Sponsor and its Assignee will agree to use commercially reasonable efforts to
satisfy the Conditions as soon as possible. In the event that neither the First
Option nor the Second Option is exercised, the Shareholder shall have the right
for a period of seventy-five (75) days after the termination of the Sponsor
Option Period to Transfer (the "Investor Sale") the Offered Shares at a price
not less than ninety percent (90%) of the price contained in, and otherwise on
terms and conditions no less favorable to such Shareholder than those set forth
in, the Investor's Notice, except that the purchase of the Offered Shares may be
delayed up to an additional thirty (30) days pending satisfaction of the
Conditions; provided that the Transferee agrees to execute a Joinder Agreement.
If the Investor Sale is not consummated pursuant to the terms of the immediately
preceding sentence, the Shareholder will not effect Transfer of any of the
Offered Shares without commencing de novo the procedures set forth in this
Section 4.01.
SECTION 4.02. Tag-Along Rights. (a) If, at any time or from
time to time prior to a Qualifying Public Equity Offering, Sponsor or any of its
Affiliates (but not including Metaldyne or any of its subsidiaries or the
Company and any of its Subsidiaries) (the "Sponsor Transferor") proposes to
Transfer any shares of Common Stock to a Person (the "Purchaser"), other than
pursuant to Section 3.02(a), 3.02(d), 5.01 or 5.02 or in a circumstance where
all of the shares owned by all the Shareholders are being purchased pursuant to
Section 4.03, the Sponsor Transferor shall give written notice (a "Transfer
Notice") of such proposed Transfer to the Shareholders at least fifteen (15)
days prior to the consummation of such proposed Transfer, setting forth (A) the
total number of shares of Common Stock offered to be Transferred to Purchaser,
(B) the consideration to be received for such shares of Common Stock by the
Sponsor Transferor, (C) the identity of the Purchaser(s), (D) any other material
terms and conditions of the proposed Transfer, (E) the expected date of the
proposed Transfer and (F) that each such Shareholder shall have the right (the
"Tag-Along Right") to elect to sell up to its Pro Rata Portion of such shares of
Common Stock to be Transferred to Purchaser. If any portion of the consideration
contained in the Transfer Notice includes consideration other than cash, the
Sponsor Transferor shall provide the Shareholders with a summary of a valuation
study, if any, that the Sponsor Transferor has prepared concerning such
consideration, but the Sponsor Transferor shall have no liability to any
Shareholder with respect to any such summary or study and no obligation to
undertake any such valuation. Notwithstanding the first sentence of this Section
4.02(a), MCLLC and each Shareholder will have a Tag-Along Right in connection
with Transfers of shares of Common Stock by the Sponsor Transferor to a
Permitted Transferee (other than an Affiliate of the Sponsor Transferor) when
the Sponsor Transferor Transfers shares of Common Stock to such Person at a
price per share (as adjusted for Adjustments) that is greater than the price per
share (as adjusted for Adjustments) paid for such shares by the Sponsor
Transferor.
(b) Upon delivery of a Transfer Notice, each Shareholder
has the option, but not the obligation, to sell up to the Pro Rata Portion of
its shares of Common Stock at the same price per share of Common Stock and
pursuant to the same terms and conditions with
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respect to payment for the shares of Common Stock as agreed to by the Sponsor
Transferor, by sending written notice to the Sponsor Transferor within ten (10)
days of the date of the Transfer Notice, indicating its election to sell up to
the Pro Rata Portion of its shares of Common Stock in the same transaction. To
the extent that elections pursuant to this Section 4.02(b) are not made with
respect to any shares of Common Stock included in a Transfer Notice within such
10-day period, then the Sponsor Transferor shall re-offer to Shareholders who
have elected to sell their Pro Rata Portion (the "Tag-Along Shareholders") for
one additional three day period, the right to sell such additional number of
shares as will result in the Tag-Along Shareholders being able to sell their pro
rata share of such remaining shares of Common Stock, based upon all the shares
of Common Stock being sold by all the Tag Along Shareholders (not including the
remaining shares). For a sixty (60) day period following such ten (10) day
period (which period may be extended an additional thirty (30) days in order to
satisfy the Conditions), each Tag-Along Shareholder shall be permitted to sell
to the Purchaser(s) on the terms and conditions set forth in the Transfer Notice
that amount of its shares of Common Stock as to which it has made its election
and the Sponsor Transferor shall be permitted to concurrently sell the balance
of the shares of Common Stock that are the subject of the Transfer Notice that
are not sold by the Tag-Along Shareholders.
(c) The provisions of Sections 4.02(a) and (b) shall not
apply to any Transfer or series of Transfers by Sponsor of shares of Common
Stock to one or more Persons other than Permitted Transferees (x) which are
effected in order to comply with the preemptive rights provisions of Section
4.05 of the Metaldyne Shareholders Agreement with respect to Sponsor's
investment in the Company pursuant to the TriMas Purchase Agreement or (y) which
are effected within one year of the date hereof at a price per share of not
greater than $20.00 per share (as adjusted for Adjustments); provided that,
after giving effect to any such Transfer referred to in this clause (y), Sponsor
would own, together with its Affiliates (not including Metaldyne and its
subsidiaries), thirty percent (30%) or more of the outstanding shares of Common
Stock.
(d) Each Tag-Along Shareholder shall not be required to
make representations and warranties in connection with such sale other than
customary representations and warranties with respect to (i) such Shareholder's
due organization, power and authority, (ii) such Shareholder's ownership of the
shares of Common Stock and ability to freely convey such shares of Common Stock
without liens or encumbrances, (iii) customary representations regarding
non-contravention of such Shareholder's charter, bylaws or other organizational
documents or material agreements of such Tag-Along Shareholder and (iv) the
enforceable nature of such Tag-Along Shareholder's obligations under the
documents for such sale to which it is a party (collectively, the "Shareholder
Representations"). No Tag-Along Shareholder shall be liable in respect of any
indemnification provided in connection with a sale of Common Stock pursuant to
this Section 4.02 (a "Tag-Along Sale"), (with respect to such Shareholder's
Shareholder Representations) in excess of the consideration received by such
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Tag-Along Shareholder in such Tag-Along Sale and no Tag-Along Shareholder shall
be required to participate in any escrow relating to such Tag-Along Sale in
excess of such Tag-Along Shareholder's participation in the Tag-Along Sale.
(e) In the event that no Shareholder elects to sell
shares of Common Stock pursuant to this Section 4.02, Sponsor and/or its
Affiliates (as the case may be) shall have the right for a period of
seventy-five (75) days (which period may be extended by an additional thirty
(30) days to satisfy the Conditions) after the expiration of the 10-day period
referred to in Section 4.02(b) to Transfer the Shares subject to the Transfer
Notice to the Purchaser at a price not greater than the price contained in, and
otherwise on terms and conditions no more favorable to Sponsor and/or such
Affiliates than those set forth in, the Transfer Notice; it being agreed that,
after the end of the 75-day period referred to in this Section 4.02(e)
(including any permitted extension thereof), Sponsor and/or such Affiliates will
not effect any transaction in any shares of Common Stock that are the subject of
the Transfer Notice without commencing de novo the procedures set forth in this
Section 4.02.
SECTION 4.03. Drag-Along Rights. If at any time prior to a
Qualifying Public Equity Offering, Sponsor and its Affiliates intend to effect a
Substantial Change of Control, Sponsor shall have the right to require the other
Shareholders (the "Drag-Along Shareholders") to sell the same percentage of
Common Stock held by them relative to such Shareholder's ownership of Common
Stock as Sponsor and its Affiliates are selling in such transaction in
connection with such Substantial Change of Control; to vote such Common Stock,
whether by proxy, voting agreement or otherwise in favor of the transactions
constituting a Substantial Change of Control; to waive their appraisal or
dissenters' rights with respect to such transaction; or otherwise participate in
such Substantial Change of Control and each other Shareholder agrees to take any
and all reasonably necessary action in furtherance of the foregoing; provided
that (a) the consideration to be received by the other Shareholders shall be for
the same type and amount per share of consideration received by Sponsor, and (b)
after giving effect to such transaction, Sponsor and its Direct Permitted
Transferees shall have sold the same percentage of their holdings of Common
Stock as sold by the Drag-Along Shareholders; provided, however, that MCLLC and
its Direct Permitted Transferees will not be obligated to participate in such
transaction if the consideration per share in such transaction is less than
$20.00 per share (as adjusted for Adjustments) of the Common Stock, and
provided, further, that if Sponsor and its Affiliates are selling all of their
shares of Common Stock in connection with such Substantial Change of Control,
the Drag-Along Shareholders will be required to sell all of their shares
pursuant to this Section 4.03. In connection with the sale of their shares of
Common Stock pursuant to this Section 4.03, the Drag-Along Shareholders shall
not be required to make any representations and warranties other than the
Shareholder Representations. In addition, no Drag-Along Shareholder shall be
liable in respect of any indemnification in connection with a transaction
effected pursuant to this Section 4.03 (a "Drag-Along Transaction") (with
respect to such Shareholder's Shareholder Representations) in ex-
-16-
cess of the consideration received by such Drag-Along Shareholder in such
Drag-Along Transaction and no such Drag-Along Shareholder shall be required to
participate in any escrow relating to such Drag-Along Transaction in excess of
the amount of Common Stock such Drag-Along Shareholder is required to sell
pursuant to this Section 4.03.
SECTION 4.04. Information. (a) Prior to the occurrence of an
Initial Public Offering, the Company shall deliver to each Shareholder
(1) as soon as available, but in any event within forty-five
(45) days after the end of each quarter, copies of
(i) consolidated balance sheets of the Company and its
subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income, stockholders'
equity and cash flows of the Company and its subsidiaries, for
such quarter and for the portion of the fiscal year ending
with such quarter,
in each case prepared in accordance with GAAP applicable to periodic
financial statements generally, fairly presenting, in all material
respects, the financial position of the Persons being reported on and
their results of operations and cash flows, subject to changes
resulting from normal year-end adjustments;
(2) as soon as available, but in any event within ninety
(90) days after the end of each fiscal year of the Company, copies of
(i) consolidated balance sheets of the Company and its
subsidiaries as at the end of such year, and
(ii) consolidated statements of income, stockholders'
equity and cash flows of the Company and its subsidiaries for
such year,
in each case prepared in accordance with GAAP, fairly presenting, in
all material respects, the financial position of the Persons being
reported on and their results of operations and cash flows, and
accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state
that such financial statements present fairly, in all material
respects, the financial position of the Persons being reported upon and
their results of operations and cash flows and have been prepared in
conformity with GAAP;
(b) In the case of any Shareholder (other than MCLLC)
prior to the occurrence of a Qualifying Public Equity Offering, and for so long
as such Shareholder owns
-17-
twenty-five percent (25%) or more of the number of shares of Common Stock (as
adjusted for Adjustments) owned by such Shareholder as of the date of the
amendment and restatement hereof or in the case of MCLLC, for so long as MCLLC
retains a number of shares of Common Stock equal to at least twenty-five percent
(25%) of the number of shares of Common Stock (as adjusted for Adjustments)
owned by MCLLC immediately following the Transactions, the Company shall deliver
to each such Shareholder and MCLLC
(1) the information and reports provided pursuant to
Sections 4.04(a)(1) and (2);
(2) monthly "flash reports" utilized by the Company in its
own management containing summarized, abbreviated data with respect to
income statement amounts, balance sheet data and cash flows to the
extent available; and
(3) such other information concerning the condition or
operations, financial or otherwise, of the Company and its subsidiaries
as a Shareholder may, from time to time, reasonably request.
(c) The rights to receive the information set forth in
subsections (1) and (2) of paragraph (a) shall be assignable to Transferees of
Common Stock and Permitted Transferees that become Shareholders. The rights to
receive the information set forth in subsections (2) and (3) of paragraph (b)
shall be assignable to a Transferee that acquires from MCLLC at least fifty
percent (50%) of the shares of Common Stock owned by MCLLC as of the date hereof
(as adjusted for Adjustments).
(d) Prior to the occurrence of a Qualifying Public Equity
Offering, and for so long as a Shareholder owns twenty-five percent (25%) or
more of the number of shares of Common Stock (as adjusted for Adjustments) owned
by such Shareholder on date of the amendment and restatement hereof,
Representatives of such Shareholder shall be provided with a reasonable
opportunity to discuss the business and affairs of the Company with the
Company's senior managers, directors, officers and senior employees upon
reasonable advance notice during normal business hours; provided that such
Company representatives shall be available to such Shareholder for an annual
meeting with senior management at which the following year's budget is presented
and to MCLLC for quarterly meetings at which the most recent quarterly results
are discussed.
(e) Each Shareholder hereby agrees that neither it nor
its Representatives will disclose to any third party any information provided to
it or its Representatives by the Company hereunder which is not generally
available to the public, except with the prior express approval of the Company
or as may be required by applicable law; it being understood that nothing in
this Section 4.04(f) will restrict the ability of a Shareholder to disclose
certain
-18-
information to its investors in accordance with its governing documents;
provided that such investors agree to be bound by the confidentiality provisions
of this Agreement.
(f) Notwithstanding the above, access to highly
confidential proprietary information and facilities need not be provided by the
Company, nor shall the Company be required to provide information to any
Shareholder that is a competitor or reasonably likely to become a competitor of
the Company or any of its subsidiaries; it being understood that the
Shareholders and parties to the Metaldyne Shareholder's Agreement existing as of
the date hereof are not competitors.
SECTION 4.05. Preemptive Rights. (a) Prior to the occurrence
of an Initial Public Offering, the Company hereby grants and hereby agrees to
cause each Significant Subsidiary of the Company to grant to each Shareholder
the right to purchase up to such Shareholder's Proportionate Percentage (as
hereinafter defined) of any future Eligible Offering (as hereinafter defined).
For purposes of this Section 4.05, the following terms shall have the meanings
set forth below.
"Proportionate Percentage" means, with respect to any
Shareholder as of any given date with respect to an Eligible Offering,
the number (expressed as a percentage) obtained by dividing (A) the
number of shares of Common Stock owned by such Shareholder as of such
date by (B) the total number of shares of Common Stock held by all
Shareholders.
"Eligible Offering" means an offer by the Company or a
Significant Subsidiary of the Company to sell to any Person or Persons
for cash, any Capital Stock of the Company or a Significant Subsidiary,
other than an offering by the Company or a Significant Subsidiary of
the Company:
(i) of Common Stock in an underwritten public
offering (a "Public Offering") registered under the 1933 Act
or pursuant to a Rule 144A offering under the 1933 Act;
(ii) of Common Stock issued upon the exercise of
options, warrants or convertible securities outstanding as of
the date hereof;
(iii) of Common Stock or options to purchase shares of
Common Stock in connection with or pursuant to any stock
option, stock purchase plan or agreement or other benefit
plans approved by the Board of Directors of the Company to
full-time employees, officers, directors, consultants and/or
advisors to the Company or its subsidiaries (excluding
employees of Sponsor);
-19-
(iv) of Common Stock issued in connection with
restricted stock awards;
(v) of Capital Stock of the Company issued as
consideration to any seller in connection with the acquisition
by the Company or any subsidiary of the Company of the assets
of any Person in any transaction approved by the Board of
Directors of the Company;
(vi) of Capital Stock of the Company issued as an
inducement in connection with any debt financing of the
Company, subject to terms and conditions approved by the Board
of Directors of the Company;
(vii) of Capital Stock of a Significant Subsidiary of
the Company in connection with any sale of control of such
Significant Subsidiary to, or any joint venture between such
Significant Subsidiary and a third party that is not a
financial sponsor or investor, which sale or joint venture is
approved by the Board of the Directors of the Company; and
(viii) of director qualifying or similar shares of a
Significant Subsidiary.
For purposes of this Section 4.05 only, "Capital Stock" means
any and all shares of common stock or options, warrants or similar instruments
or any other securities convertible or exchangeable or exercisable therefor
(collectively, "Equity Interests") or any equity security linked to or offered
or sold in connection with any Equity Interests of such Person or any of its
Significant Subsidiaries, as the case may be.
(b) The Company shall, before any securities are issued
pursuant to an Eligible Offering, give written notice (a "Preemptive Notice")
thereof to each Shareholder that is entitled to preemptive rights hereunder.
Such notice shall specify the security or securities proposed to be issued, the
proposed date of issuance, the consideration that the Company or such
Significant Subsidiary intends to receive therefor and all other material terms
and conditions of such proposed issuance. For a period of ten (10) days
following the date of such notice, each such Shareholder shall be entitled, by
written notice to the Company, to elect to purchase all or part of such
Shareholder's Proportionate Percentage of the securities being sold in the
Eligible Offering. To the extent that elections pursuant to this Section 4.05(b)
shall not be made with respect to any shares of Capital Stock included in a
Preemptive Notice within such 10-day period, then the Company shall re-offer to
Shareholders who have elected to purchase their Proportionate Percentage (the
"Preemptive Shareholders") for one additional three-day period, the right to
purchase any part of the shares of Capital Stock not purchased by other
Shareholders (the "Section 4.05 Remaining Shares") pursuant to this Section 4.05
which is equal to the product obtained by multiplying (i) the number of Section
4.05 Remaining Shares
-20-
by (ii) a fraction, the numerator of which is the number of shares of Common
Stock then owned by any such Preemptive Shareholder and the denominator of which
is the aggregate number of shares owned by all Preemptive Shareholders. To the
extent that elections pursuant to this Section 4.05(b) shall not be made with
respect to any securities included in an Eligible Offering within such ten (10)
day period, then the Company or such Significant Subsidiary, as the case may be,
shall not be obligated to issue to such Shareholder such securities for which
such Shareholder has elected not to purchase. To the extent that there are
securities that have not been purchased pursuant to this Section 4.05, then the
Company or such Significant Subsidiary, as the case may be, may issue such
securities, but only for consideration not less than, and otherwise on no less
favorable terms to the Company or such Significant Subsidiary, as the case may
be, than, those set forth in the Preemptive Notice and only within thirty (30)
days after the end of such ten (10) day period. In the event that any such offer
is accepted by any such Shareholder or Shareholders, the Company or such
Significant Subsidiary, as the case may be, shall sell to such Shareholder or
Shareholders, and such Shareholder or Shareholders shall purchase from the
Company or such Significant Subsidiary, as the case may be, for the
consideration and on the terms set forth in the notice as aforesaid, the
securities that such Shareholder or Shareholders shall have elected to purchase
within ten (10) days of such Shareholder's election to purchase such
Proportionate Percentage (subject to delay for an additional thirty days for
satisfaction of the Conditions).
(c) The Company may comply with any applicable securities
laws before issuing any shares of Capital Stock pursuant to this Section 4.05
and shall not be in violation of the provisions hereof by reason of such
compliance; provided it is using commercially reasonable efforts to so comply.
SECTION 4.06. Board of Directors. (a) At each annual or
special stockholders meeting called for the election of directors, and whenever
the Shareholders of the Company act by written consent with respect to the
election of directors, each Shareholder agrees to vote or otherwise give such
Shareholder's consent in respect of all shares of the Capital Stock of the
Company (whether now owned or hereafter acquired) owned by such Shareholder, and
take all other appropriate action and the Company shall take all necessary and
desirable actions within its control in order to cause:
(i) an amendment to the Bylaws of the Company to provide that
the authorized number of directors on the Board of Directors of the
Company shall be as recommended by the Sponsor in its sole discretion;
provided such number not be less than the number of directors needed to
satisfy MCLLC's right to a director under Section 4.06(a)(ii)(2) and
CSFB Plan Partner's right to a director under Section 4.06(a)(ii)(3);
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(ii) the election to the Board of Directors of
(1) such number of directors as shall constitute
a majority of the Board of Directors as
designated by Heartland Industrial Partners,
L.P.;
(2) one director designated by MCLLC; provided
that upon MCLLC and its subsidiaries ceasing
to own at least 20% of the outstanding
shares of Common Stock owned by MCLLC
immediately following the Transactions (as
adjusted for Adjustments), MCLLC shall no
longer have the right to designate one
director to the Board of Directors of the
Company; and
(3) one director designated by the CSFB Plan
Partner (as defined in the Metaldyne
Shareholders Agreement) for so long as CSFB
Plan Partner has the right under the
Metaldyne Shareholders Agreement to appoint
a director to the Board of Directors of
Metaldyne; provided, that upon MCLLC and its
subsidiaries ceasing to own at least 20% of
the outstanding shares of Common Stock owned
by MCLLC immediately following the
Transactions (as adjusted for Adjustments),
CSFB Plan Partner shall no longer have the
right to designate one director to the Board
of Directors of the Company;
all of which persons shall hold office subject to their earlier removal
in accordance with clause (iii) below, the Bylaws of the Company and
applicable corporate law, until their respective successors shall have
been elected and shall have qualified;
(iii) the removal from the Board of Directors (with or without
cause) of any director elected in accordance with clause (ii) above
upon the written request of the Shareholders that designated such
director; and
(iv) upon any vacancy in the Board of Directors as a result of
any individual designated as provided in clause (ii) above ceasing to
be a member of the Board of Directors whether by resignation or
otherwise, the election to the Board of Directors as promptly as
possible of an individual designated by the Shareholders that
designated such individual; provided that MCLLC and CSFB Plan Partner
will consult with Sponsor prior to designating a replacement.
(b) The parties hereto agree to cause the Company's Board
of Directors to appoint at least one MCLLC Director to each decision-making
committee of the Board and to cause at least one MCLLC Director to be nominated
to the board of each subsidiary of the
-22-
Company to the extent the composition of such boards is substantially identical
to the composition of the Company's Board of Directors.
(c) The Company agrees to provide customary directors'
liability insurance.
(d) For so long as MCLLC owns at least 20% of the shares
of Common Stock owned by MCLLC immediately following the Transactions (as
adjusted for Adjustments), the Company shall not (a) make any material
amendments or changes to its certificate of incorporation or bylaws without
MCLLC's prior written consent (which consent shall not be unreasonably withheld)
or (b) liquidate, dissolve or wind-up its affairs without MCLLC's prior written
consent (which consent shall not be unreasonably withheld).
SECTION 4.07. Transaction with Affiliates. Without the consent
of Shareholders (other than Sponsor and its Affiliates) owning a majority of the
shares of Common Stock held by such Persons, for so long as Sponsor directly or
indirectly beneficially owns thirty-five percent (35%) or more of the
outstanding shares of Common Stock, the Company and its subsidiaries will not
enter into, or suffer to exist, any transaction with Sponsor or any of its
Affiliates (excluding Metaldyne and its subsidiaries) involving payments or
other consideration in excess of $1.0 million. The foregoing restrictions will
not apply to (a) the payment of annual monitoring fees to Sponsor in an amount
not to exceed $4.0 million plus reimbursement of out-of-pocket expenses incurred
by Sponsor in connection with the advisory services provided to the Company for
the first year after the date hereof; (b) the payment to Sponsor of advisory
fees and out-of-pocket expense reimbursement in connection with an acquisition,
divestiture or financing by the Company or any of its subsidiaries (but
excluding sales and purchases of personal property in the ordinary course of
business) provided that such fees shall be in an amount equal to 1% of the
aggregate value of such transaction; (c) fees payable to Sponsor in connection
with the Transactions and reimbursement of out-of-pocket expenses incurred by
Sponsor in connection with the Transactions; (d) transactions involving the
sale, purchase or lease of goods or services in the ordinary course of business
and on an arm's-length basis between or among the Company or any of its
subsidiaries and portfolio companies of Sponsor; (e) transactions between or
among the Company or any of its subsidiaries; (f) issuances of Capital Stock to
Sponsor and its Affiliates pursuant to, and in compliance with, Section 4.05;
(g) transactions approved by the disinterested members of the Board of Directors
of the Company (it being understood that a disinterested board member is one who
does not have a direct or indirect material interest in the transaction to be
voted on); (h) transactions pursuant to or contemplated by the TriMas Purchase
Agreement; and (i) any transaction as to which the Company has received an
opinion from an independent investment banking or other qualified firm that the
transaction is fair to the Company from a financial point of view; provided that
such firm shall be selected by the chief executive officer of MCLLC.
Notwithstanding the foregoing, the benefits of this Section 4.07 shall terminate
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upon MCLLC and its subsidiaries ceasing to own at least 20% of the shares of
Common Stock owned by MCLLC immediately following the Transactions (as adjusted
for Adjustments).
ARTICLE V
REGISTRATION RIGHTS
SECTION 5.01. Company Registration.
--------------------
(a) Right to Piggyback on Registration of Stock. Subject
to Section 5.01(c), if at any time or from time to time the Company proposes to
register the Common Stock under the 1933 Act in connection with a public
offering of such Common Stock on any form other than Form S-4 or Form S-8 or any
similar successor forms or another form used for a purpose similar to the
intended use for such forms (a "Piggyback Registration"), whether for its own
account or for the account of one or more shareholders of the Company, the
Company shall each such time promptly give each Shareholder written notice of
such determination; provided, however, that such notice of a Piggyback
Registration shall be given at least ten (10) business days prior to the earlier
of the anticipated effective date of such Piggyback Registration or (y) the
commencement of formal selling efforts by any underwriter in the case of an
underwritten offering. Upon the written request of any Shareholder (the
"Piggyback Holder") given within eight (8) business days after the providing of
any such notice by the Company, the Company shall use its best efforts to cause
to be registered under the 1933 Act all of the Registrable Securities held by
such Shareholder that the Shareholder has requested to be registered; provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Piggyback Holder and (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from any obligation of
the Company to pay the registration expenses in connection therewith); and (ii)
in the case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other securities. No registration effected under this Section
5.01 shall relieve the Company of its obligation to effect any registration upon
demand under Section 5.02. The registration rights contained in Section 5.01 may
be assigned to any Transferee or Permitted Transferee.
(b) Selection of Underwriters. If any Piggyback
Registration involves an underwritten offering, the Company shall have sole
discretion in the selection of any underwriter or underwriters to manage such
Piggyback Registration.
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(c) Priority on Piggyback Registrations. In the event
that the Piggyback Registration includes an underwritten offering, the Company
shall so advise the Shareholders as part of the written notice given pursuant to
Section 5.01(a) and the registration rights provided in Section 5.01(a) shall be
subject to the condition that if the managing underwriter or underwriters of a
Piggyback Registration advise the Company in writing (a copy of which shall be
provided to the applicable Shareholders) that in its opinion the number of
Registrable Securities proposed to be sold in such Piggyback Registration
exceeds the number which can be sold, and would materially adversely affect the
price at which the Registrable Securities are to be sold, in such offering, the
Company (or the Shareholders, as the case may be) will include in such
registration only the number of Registrable Securities which, in the opinion of
such underwriter or underwriters can be sold in such offering without such
material adverse effect. The Registrable Securities so included in such
Piggyback Registration shall be apportioned (i) first, either (x) subject to the
rights of MCLLC set forth in the proviso to this Section 5.01(c), in a case
including a primary registration on behalf of the Company, to any shares of
Common Stock that the Company proposes to sell, or (y) in the case of a
secondary registration on behalf of any person exercising demand registration
rights, pro rata among the Holders on the basis of the number of shares of
Common Stock to be registered pursuant to such demand registration (except to
the extent otherwise provided in Section 5.02), (ii) second, shares held by
MCLLC (in the event MCLLC ceases to be a Holder), (iii) third, pro rata among
the Shareholders (other than MCLLC), if any, not included under clause (i) and
(iv) fourth, pro rata among other shares included in such Piggyback
Registration, in each case according to the total number of shares of the Common
Stock requested for inclusion by said selling stockholders, or in such other
proportions as shall mutually be agreed to among such selling stockholders;
provided, however that, in the event of any primary registration on behalf of
the Company, 50% of the Registrable Securities to be apportioned to the
Piggyback Holders shall be apportioned to MCLLC to the extent MCLLC is a
Piggyback Holder.
SECTION 5.02. Demand Registration Rights.
--------------------------
(a) Right to Demand. At any time after a Triggering
Event, the Demand Holders may, individually or collectively, (x) make a written
request, which request will specify the aggregate number of Registrable
Securities to be registered and will also specify the intended methods of
disposition thereof (the "Request Notice") to the Company for registration with
the Commission under and in accordance with the provisions of the 1933 Act of
all or part of the Registrable Securities then owned by Demand Holders (a
"Secondary Demand Registration") or (y) make a written request, requesting that
the Company register shares of Common Stock on a primary basis and consummate an
Initial Public Offering (the "IPO Primary Demand" and together with the
Secondary Demand Registration, a "Demand Registration"); provided that the
Company may, if its Board of Directors so determines in the exercise of its
reasonable, good faith judgment that due to a pending or contemplated
acquisition or disposition or public offering or other material event involving
the Company it would be in-
-25-
advisable to effect such Demand Registration at such time, the Company may, upon
providing the Demand Holders written notice (the "Delay Notice"), defer,
postpone or suspend such Demand Registration for a single period with respect to
such Demand Registration not to exceed one hundred thirty-five (135) days. Upon
receipt by the Company of a request (a "Demand Request") to effect a Demand
Registration the Company will within 10 business days after the receipt of such
notice, notify each other Demand Holder of such request and such other Demand
Holder(s) shall have the option to include its Registrable Securities in such
Demand Registration pursuant to this Section 5.02. Subject to Section 5.02(g),
the Company will register all other Registrable Securities which the Company has
been requested to register by such other Demand Holders which still have the
right to make a Request Notice pursuant to Section 5.02 hereof (each an
"Incidental Demand Holder") pursuant to this Section 5.02 by written request
given to the Company by such holders within eight (8) business days after the
giving of such written notice by the Company to such other Demand Holders. The
Company shall not be obligated to maintain a registration statement pursuant to
a Demand Registration effective for more than (x) ninety (90) days or (y) such
shorter period when all of the Registrable Securities covered by such
registration statement have been sold pursuant thereto (the "Effectiveness
Period"). Notwithstanding the foregoing, the Company shall not be obligated to
effect more than one Demand Registration in any 180-day period. Upon any such
request for a Demand Registration, the Company will deliver any notices required
by Section 5.01 and 5.02 and thereupon the Company will, subject to Section
5.01(c) and 5.02(f) hereof use its best efforts to effect the prompt
registration under the 1933 Act of;
(i) the Registrable Securities which the Company has been so
requested to register by Demand Holders as contained in the Request
Notice, and
(ii) all other Registrable Securities which the Company has
been requested to register by the Piggyback Holders and Incidental
Demand Holders,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or methods
of disposition of each seller of such Registrable Securities.
(b) Demand Conditions. Notwithstanding anything herein to
the contrary, a Demand Holder will not be permitted to deliver a Request Notice
prior to a Qualifying Public Equity Offering unless the Request Notice relates
to an underwritten public offering. Such Demand Holder and the Company shall
consult with one another and a nationally recognized investment banking firm
selected by the Company to determine whether or not the most probable price to
public for an initial public offering of Common Stock would be a per share price
(the "Target Price") that is in excess of $20.00 per share (as adjusted by the
Adjustments). The Company shall not be obligated to proceed if the price to
public is expected to be or is
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less than the Target Price. All of the requirements referred to herein for a
Request Notice prior to a Qualifying Public Equity Offering are referred to as
the "Demand Conditions".
(c) Number of Demand Registrations. The Company shall not
be required to prepare and file a registration statement pursuant to this
Section 5.02 if the Request Notice relates to shares of Common Stock held by
such Demand Holder having a value of less than $40,000,000. In addition, the
Company will not be required to effect more than three registrations pursuant to
this Section 5.02 on behalf of MCLLC and its Direct Permitted Transferees
provided, that MCLLC shall be afforded an additional Demand Registration if it
has made an IPO Primary Demand. Sponsor and its Affiliates will be entitled to
an unlimited number of Demand Registrations. It is hereby acknowledged and
agreed by the parties that any Registrable Securities included in a registration
statement on behalf of an Incidental Demand Holder will not count as a Demand
Registration for such Incidental Demand Holder. In connection with a Demand
Registration by more than one Demand Holder or by a Demand Holder and Incidental
Demand Holders, such Demand Holders and Incidental Demand Holders shall elect
one such Holder to act as representative (the "DH Representative") in connection
with such Demand Registration and the Company shall only be obligated to
communicate with such DH Representative in connection with such Demand
Registration. The Holders shall give the DH Representative any and all necessary
powers of attorneys needed for the DH Representative to act on their behalf.
(d) Revocation. Holders of a majority in number of the
Registrable Securities to be included in a registration statement pursuant to
this Section 5.02 may, at any time prior to the effective date of the
registration statement relating to such Demand Registration, acting through
their DH Representative revoke such request by providing a written notice
thereof to the Company. The Holders of Registrable Securities who revoke such
request shall reimburse the Company for all its expenses incurred in the
preparation, filing and processing of the registration statement. If pursuant to
the terms of this Section 5.02(d), the Holders reimburse the Company for its
reasonable expenses incurred in the preparation, filing and processing of any
registration statement requested and subsequently revoked by such Holders, the
attempted registration by such requested and subsequently revoked registration
statement shall not be deemed to be a Demand Registration. Notwithstanding the
foregoing, the Holders of a majority in number of the Registrable Securities to
be included in a registration statement pursuant to this Section 5.02 may, at
any time within five days after receipt of any Delay Notice acting through their
DH Representative revoke such request by providing written notice thereof to the
Company and the attempted Demand Registration shall not be deemed to be a Demand
Registration, notwithstanding that such Holders shall not reimburse the Company
for any expenses incurred in the preparation, filing and processing of any
Registration Statement.
(e) Effective Registration. A registration will not count
as a Demand Registration (i) if a Demand Holder determines in its good faith
judgment to withdraw the pro-
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posed registration of any Registrable Securities requested to be registered by
such Demand Holder (x) due to marketing or regulatory reasons subject to such
Holder reimbursing the Company for its expenses in accordance with Section
5.02(d) above, or (y) due to a material adverse change in the Company (other
than as a result of any action by such Demand Holder); (ii) if such registration
is interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court for any reason (other
than as a result of any action by the Holder) and the Company fails to promptly
have such stop order, injunction or other order or requirement removed,
withdrawn or resolved to the Holder's satisfaction; or (iii) the conditions to
closing specified in the underwriting agreement or purchase agreement entered
into in connection with the registration relating to any such demand are not
satisfied (other than as a result of a default or breach thereunder by the
relevant Holder).
(f) Selection of Underwriters. If any of the Registrable
Securities covered by a Demand Registration are to be sold in an underwritten
offering, the Company will have the right to select the managing underwriter(s)
to administer the offering.
(g) Priority on Demand Registrations. If the managing
underwriter or underwriters of a Secondary Demand Registration advise the
Company in writing that in its or their opinion the number of Registrable
Securities proposed to be sold in such Secondary Demand Registration exceeds the
number which can be sold, or adversely affects the price at which the
Registrable Securities are to be sold, in such offering (the "Underwriter
Cutback"), the Company will include in such registration only the number of
Registrable Securities which, in the opinion of such underwriter or
underwriters, can be sold in such offering without such material adverse effect.
To the extent such Secondary Demand Registration includes Registrable Securities
of more than one Holder, the Registrable Securities so included in such
Secondary Demand Registration shall be apportioned (i) first, pro rata among the
Demand Holders and any Incidental Demand Holders based upon the number of shares
of Common Stock owned by each such Holder at the date of determination and (ii)
second, pro rata among other shares of Common Stock included in such Secondary
Demand Registration; provided, however that after an Initial Public Offering if
MCLLC is a Demand Holder with respect to such Secondary Demand Registration,
then MCLLC will be able to include in such registration in priority (such
priority, the "MCLLC Priority") to all Shareholders as many Registrable
Securities as possible subject to the Underwriter Cutback.
(h) Assignability of Demand Registration Rights. The
rights offered a Shareholder pursuant to Section 5.02 are only assignable to a
Direct Permitted Transferee.
(i) Company Preemption Right. Notwithstanding anything
herein to the contrary, if at any time a Holder shall request a Secondary Demand
Registration, the Company may elect at that time to effect an underwritten
primary offering by the Company (in which
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case the applicable demand will not count as a Demand Registration) if, in the
good faith judgment of the Company's Board of Directors, it would be in the best
interests of the Company to access the public market to raise equity capital in
order to (i) finance an acquisition or investment or (ii) enhance the Company's
capital structure, liquidity or financial position. If the Company elects to
effect a primary registration after receiving such a request for a Secondary
Demand Registration, the Company will give prompt written notice (and in any
event within 45 days after receiving such a request for a Demand Registration)
to all Holders of its intention to effect such a registration and shall afford
the Holders rights to Piggyback Registration in accordance with Section 5.01
hereof.
SECTION 5.03. Registration Procedures. It shall be a condition
precedent to the obligations of the Company and any underwriter or underwriters
to take any action pursuant to this Article V that the Shareholders requesting
inclusion in any Piggyback Registration or Demand Registration (a
"Registration") shall furnish to the Company such information regarding them,
the Registrable Securities held by them, the intended method of disposition of
such Registrable Securities, and such agreements regarding indemnification,
disposition of such securities and other matters referred to in this Article V
as the Company shall reasonably request and as shall be required in connection
with the action to be taken by the Company. With respect to any Registration
which includes Registrable Securities held by a Shareholder, the Company will,
subject to Sections 5.01 and 5.02 promptly:
(a) Prepare and file with the Commission a registration
statement on the appropriate form prescribed by the Commission and use
its best efforts to cause such registration statement to become
effective as soon as practicable thereafter; provided that the Company
shall not be obligated to maintain such registration effective for a
period longer than the Effectiveness Period; provided further that
before filing a registration statement or prospectus or any amendments
or supplements thereto, including documents incorporated by reference
after the initial filing of the registration statement, the Company
will furnish to the holders of the Registrable Securities covered by
such registration statement and the underwriter or underwriters, if
any, copies of or drafts of all such documents proposed to be filed,
including documents incorporated by reference in the Prospectus and, if
required by such holders, the exhibits incorporated by reference, at
least three (3) business days prior thereto, which documents will be
subject to the reasonable review of such holders and underwriters.
Holders of Registrable Securities covered by such registration
statement will have the opportunity to object to any information
pertaining to such holders that is contained therein and the Company
will make the corrections reasonably requested by such holders with
respect to such information prior to filing any registration statement
or amendment thereto or any prospectus or any supplement thereto;
provided, however, that the Company will not file any registration
statement or amendment thereto or any prospectus or any supplement
thereto or any documents required to be incorporated by reference
therein to
-29-
which holders of a majority of the Registrable Securities covered by
such registration statement or the underwriters, if any, shall
reasonably object;
(b) Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement and any
documents required to be incorporated by reference therein as may be
necessary to keep the registration statement effective for a period of
not less than the Effectiveness Period (but not prior to the expiration
of the time period referred to in Section 4(3) of the 1933 Act and Rule
174 thereunder, if applicable); cause the prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the 1933 Act; and comply with the
provisions of the 1933 Act applicable to it with respect to the
disposition of all Registrable Securities covered by such registration
statement during the applicable period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
registration statement or supplement to the prospectus;
(c) Furnish to such Shareholder, without charge, such number
of conformed copies of the registration statement and any
post-effective amendment thereto, as such Shareholder may reasonably
request, and such number of copies of the prospectus (including each
preliminary prospectus) and any amendments or supplements thereto, and
any documents incorporated by reference therein as the Shareholder or
underwriter or underwriters, if any, may request in order to facilitate
the disposition of the securities being sold by the Shareholder (it
being understood that the Company consents to the use of the prospectus
and any amendment or supplement thereto by the Shareholder covered by
the registration statement and the underwriter or underwriters, if any,
in connection with the offering and sale of the securities covered by
the prospectus or any amendments or supplements thereto);
(d) Notify such Shareholder, at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act, when
the Company becomes aware of the happening of any event as a result of
which the prospectus included in such registration statement (as then
in effect) contains any untrue statement of material fact or omits to
state a material fact necessary to make the statements therein (in the
case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading and, as
promptly as practicable thereafter, prepare and file with the
Commission and furnish a supplement or amendment to such prospectus so
that, as thereafter delivered to the investors of such securities, such
prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
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(e) In the case of an underwritten offering, enter into such
customary agreements (including underwriting agreements in customary
form) and make members of senior management of the Company available on
a basis reasonably requested by the underwriters to participate in,
"road show" and other customary marketing activities (including
one-on-one meetings with prospective purchasers of the Registrable
Securities) and cause to be delivered to the underwriters reasonable
opinions of counsel to the Company in customary form, covering such
matters as are customarily covered by opinions for an underwritten
public offering as the underwriters may reasonably request and
addressed to the underwriters;
(f) Make available, for inspection by any seller of
Registrable Securities, any underwriter participating in any
disposition pursuant to a registration statement, and any attorney,
accountant or other agent retained by any 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 and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent that are necessary to be reviewed by such person in
connection with the preparation of such registration statement;
(g) If requested, cause to be delivered, immediately prior to
the effectiveness of the registration statement (and, in the case of an
underwritten offering, at the time of delivery of any Registrable
Securities sold pursuant thereto), letters from the Company's
independent certified public accountants addressed to each selling
Shareholder (unless such selling Shareholder does not provide to such
accountants the appropriate representation letter required by rules
governing the accounting profession) and each underwriter, if any,
stating that such accountants are independent public accountants within
the meaning of the 1933 Act and the applicable rules and regulations
adopted by the Commission thereunder, and otherwise in customary form
and covering such financial and accounting matters as are customarily
covered by letters of the independent certified public accountants
delivered in connection with primary or secondary underwritten public
offerings, as the case may be;
(h) Provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of the
registration statement;
(i) Use its best efforts to cause all securities included in
such registration statement to be listed, by the date of the first sale
of securities pursuant to such registration statement, on any national
securities exchange, quotation system or other market on which the
Common Stock is then listed or proposed to be listed by the Company, if
any;
-31-
(j) Make generally available to its security holders an
earnings statement, which need not be audited, satisfying the
provisions of Section 11(a) of the 1933 Act as soon as reasonably
practicable after the end of the twelve (12)-month period beginning
with the first month of the Company's first fiscal quarter commencing
after the effective date of the registration statement, which statement
shall cover said twelve (12)-month period;
(k) After the filing of a registration statement, (i) promptly
notify each Shareholder holding Registrable Securities covered by such
registration statement of any stop order issued or, to the Company's
knowledge, threatened by the Commission and of the receipt by the
Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the
applicable securities or blue sky laws of any jurisdiction and (ii)
take all reasonable actions to obtain the withdrawal of any order
suspending the effectiveness of the registration statement or the
qualification of any Registrable Securities at the earliest possible
moment;
(l) Subject to the time limitations specified in paragraph (b)
above, if requested by the managing underwriter or underwriters or such
Shareholder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter
or underwriters or the Shareholder reasonably requests to be included
therein, including, without limitation, with respect to the number of
shares being sold by the Shareholder to such underwriter or
underwriters, the purchase price being paid therefor by such
underwriter or underwriters and with respect to any term of the
underwritten offering of the securities to be sold in such offering;
and make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable after being notified of
the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(m) As promptly as practicable after filing with the
Commission of any document which is incorporated by reference into a
registration statement, deliver a copy of such document to such
Shareholder;
(n) On or prior to the date on which the registration
statement is declared effective, use its best efforts to register or
qualify, and cooperate with such Shareholder, the underwriter or
underwriters, if any, and their counsel in connection with the
registration or qualification of, the securities covered by the
registration statement for offer and sale under the securities or blue
sky laws of each state and other jurisdiction of the United States as
the Shareholder or managing underwriter or underwriters, if any,
requests in writing, to use its best efforts to keep each such
registration or qualification effective, including through new filings,
or amendments or renewals, during the Effectiveness Period and do any
and all other acts or things necessary or advisable to
-32-
enable the disposition in all such jurisdictions of the
Registrable Securities covered by the applicable registration
statement; provided that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so
subject;
(o) Cooperate with such Shareholder and the managing
underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and
registered in such names as the Shareholder or the managing underwriter
or underwriters, if any, may request, as applicable; and
(p) Use its best efforts to cause the securities covered by
the registration statement to be registered with or approved by such
other governmental agencies, authorities or self-regulatory bodies
within the United States as may be necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities.
At all times after an Initial Public Offering, the Company
shall file all reports required to be filed by it under the 1933 Act and the
1934 Act and the rules and regulations adopted by the Commission thereunder, and
take such further action as any Shareholders may reasonably request, all to the
extent required to enable such Shareholders to be eligible to sell Registrable
Securities pursuant to Rule 144 of the 1933 Act (or any similar rule then in
effect).
The Shareholders, upon receipt of any notice from the Company
of the happening of any event of the kind described in subsection (d) of this
Section 5.03, will forthwith discontinue disposition of the securities until the
Shareholders' receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (d) of this Section 5.03 or until it is advised in
writing (the "Advice") by the Company that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings which
are incorporated by reference in the prospectus, and, if so directed by the
Company, each Shareholder will, or will request the managing underwriter or
underwriters, if any, to, deliver, to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Shareholder's possession,
of the prospectus covering such securities current at the time of receipt of
such notice. In the event the Company shall give any such notice, the time
periods mentioned in subsections (a), (b) and (n) of this Section 5.03 shall be
extended by the number of days during the period from and including any date of
the giving of such notice to and including the date when each seller of
securities covered by such registration statement shall
-33-
have received the copies of the supplemented or amended prospectus contemplated
by subsection (d) of this Section 5.03 hereof or the Advice.
SECTION 5.04. Registration Expenses. (a) Subject to Section
5.02(d), in the case of any Registration, the Company shall bear all expenses
incident to the Company's performance of or compliance with Sections 5.01, 5.02
and 5.03 of this Agreement, including, without limitation, all Commission and
stock exchange or National Association of Securities Dealers, Inc. registration
and filing fees and expenses, fees and expenses of compliance with securities or
blue sky laws (including, without limitation, reasonable fees and disbursements
of counsel in connection with blue sky qualifications of the Registrable
Securities), rating agency fees, printing expenses, messenger, telephone and
delivery expenses, fees and disbursements of counsel for the Company and all
independent certified public accountants and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (but not
including any underwriting discounts or commissions, or transfer taxes, if any,
attributable to the sale of Registrable Securities by a Piggyback Holder or
Holder or fees and expenses of more than one counsel representing the
Shareholders selling Registrable Securities under such Registration).
(b) In connection with each registration initiated
hereunder (whether a Demand Registration or a Piggyback Registration), the
Company shall reimburse the holders of Registrable Securities covered by such
registration or sale for the reasonable fees and disbursements of one law firm
chosen by the holders of a majority of the number of shares of Registrable
Securities included in such registration.
(c) The obligation of the Company to bear the expenses
described in Section 5.04(a) and to reimburse the holders for the expenses
described in Section 5.04(b) shall apply irrespective of whether a registration,
once properly demanded, if applicable, becomes effective, is withdrawn or
suspended, or is converted to another form of registration and irrespective of
when any of the foregoing shall occur; provided, however, that the expenses for
any registration statement withdrawn pursuant to 5.02(d) prior to its
effectiveness at the request of a Holder (unless withdrawn following and due to
a Delay Notice), any registration statement withdrawn solely at the request of a
Holder, or any supplements or amendments to a registration statement or
prospectus resulting from a misstatement furnished to the Company by a Holder,
shall be borne by such Holder.
SECTION 5.05. Indemnification.
---------------
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Shareholder, its officers, directors,
Affiliates and agents and each Person who controls (within the meaning of the
1933 Act or the 0000 Xxx) the Shareholder, including, without limitation any
general partner or manager of any thereof, against all losses, claims, damages,
liabilities and expenses (including reasonable counsel fees and disburse-
-34-
ments) arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any registration statement, prospectus or preliminary
prospectus, or any amendment thereof or supplement thereto, in which such
Shareholder participates in an offering of Registrable Securities or in any
document incorporated by reference therein or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the prospectus or any preliminary
prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as the same are made in reliance on and in conformity
with any information with respect to such Shareholder furnished in writing to
the Company by such Shareholder expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Shareholder from whom the
Person asserting such loss, claim, damage or liability purchased the securities
if it is determined that such loss, claim, damage or liability was caused by
such Shareholder's failure to deliver to such Shareholder's immediate purchaser
a current copy of the prospectus (if the current copy of the prospectus was
required by applicable law to be so delivered) after the Company has furnished
such Shareholder with a sufficient number of copies of such prospectus. The
Company will also indemnify underwriters (as such term is defined in the 1933
Act), their officers and directors and each Person who controls such
underwriters (within the meaning of the 0000 Xxx) to the same extent as provided
above with respect to the indemnification of the Shareholders.
(b) Indemnification by the Shareholders. In connection
with any registration statement in which a Shareholder is participating, each
such Shareholder will furnish to the Company in writing such information and
affidavits with respect to such Shareholder as the Company reasonably requests
for use in connection with any registration statement or prospectus covering the
Registrable Securities of such Shareholder and to the extent permitted by law
agrees to indemnify and hold harmless the Company, its directors, officers and
agents and each Person who controls (within the meaning of the 1933 Act or the
0000 Xxx) the Company, against any losses, claims, damages, liabilities and
expenses arising out of or based upon any untrue statement of a material fact or
any omission to state a material fact required to be stated therein or necessary
to make the statements in the registration statement or prospectus or
preliminary prospectus (in the case of the prospectus or preliminary prospectus,
in light of the circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or omission is made
in reliance on and in conformity with the information or affidavit with respect
to such Shareholder so furnished in writing by such Shareholder expressly for
use in the registration statement or prospectus; provided, however, that the
obligation to indemnify shall be several, not joint and several, among such
Shareholders and the liability of each such Shareholder shall be in proportion
to and limited to the net amount received by such Shareholder from the sale of
Registrable Securities pursuant to such registration statement in accordance
with the terms of this Agreement. The indemnity agreement contained in this
Section 5.05 shall not apply to amounts paid in settlement of any such
-35-
loss, claim, damage, liability, action or proceeding if such settlement is
effected without the consent of such Shareholder (which consent shall not be
unreasonably withheld or delayed). The Company and the holders of the
Registrable Securities hereby acknowledge and agree that, unless otherwise
expressly agreed to in writing by such holders, the only information furnished
or to be furnished to the Company for use in any registration statement or
prospectus relating to the Registrable Securities or in any amendment,
supplement or preliminary materials associated therewith are statements
specifically relating to (a) transactions or the relationship between such
holder and its Affiliates, on the one hand, and the Company, on the other hand,
(b) the beneficial ownership of shares of Common Stock by such holder and its
Affiliates, (c) the name and address of such holder and (d) any additional
information about such holder or the plan of distribution (other than for an
underwritten offering) required by law or regulation to be disclosed in any such
document.
(c)......Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) unless in such indemnified party's reasonable judgment a conflict of
interest may exist between such indemnified and indemnifying parties with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. The
failure to so notify the indemnifying party shall not relieve the indemnifying
party from any liability hereunder with respect to the action, except to the
extent that such indemnifying party is materially prejudiced by the failure to
give such notice; provided, however, that any such failure shall not relieve the
indemnifying party from any other liability which it may have to any other
party. No indemnifying party in the defense of any such claim or litigation,
shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party there may be one or more legal or
equitable defenses available to such indemnified party which are in addition to
or may conflict with those available to any other of such indemnified parties
with respect to such claim, in which event the indemnifying party shall be
obligated to pay the reasonable fees and expenses of such additional counsel or
counsels; provided, however, that such number of additional counsel must be
reasonably acceptable to the indemnifying party.
(d) Contribution. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) of this Section 5.05 is
unavailable to an indemnified party as contemplated by the preceding paragraphs
(a) and (b) of this Section 5.05, then the indemnify-
-36-
ing party shall contribute to the amount paid or payable by the indemnified
party as a result of such loss, claim, damage or liability in such proportion as
is appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations. In no event shall the liability of any selling
Shareholder be greater in amount than the amount of net proceeds received by
such Shareholder upon such sale or the amount for which such indemnifying party
would have been obligated to pay by way of indemnification if the
indemnification provided in paragraph (b) of this Section 5.05 had been
available.
SECTION 5.06. 1934 Act Reports. The Company agrees that at all
times after it has filed a registration statement pursuant to the requirements
of the 1933 Act relating to any class of equity securities of the Company, it
will use its best efforts to file in a timely manner all reports required to be
filed by it pursuant to the 1934 Act to the extent the Company is required to
file such reports. Notwithstanding the foregoing, the Company may deregister any
class of its equity securities under Section 12 of the 1934 Act or suspend its
duty to file reports with respect to any class of its securities pursuant to
Section 15(d) of the 1934 Act if it is then permitted to do so pursuant to the
1934 Act and rules and regulations thereunder.
SECTION 5.07. Holdback Agreements. (a) Whenever the Company
proposes to register any of its equity securities under the 1933 Act for its own
account (other than on Form S-4 or S-8 or any similar successor form or another
form used for a purpose similar to the intended use of such forms) or is
required to use its best efforts to effect the registration of any Registrable
Securities under the 1933 Act pursuant to Section 5.01 or 5.02, each holder of
Registrable Securities agrees by acquisition of such Registrable Securities not
to effect any sale or distribution, including any sale pursuant to Rule 144
under the 1933 Act, or to request registration under Section 5.02 of any
Registrable Securities within 10 days prior to and 90 days (unless advised by
the managing underwriter that a longer period, not to exceed 180 days, is
required, or such shorter period as the managing underwriter for any
underwritten offering may agree) after the effective date of the registration
statement relating to such registration, except as part of such registration or
unless in the case of a private sale or distribution, the transferee agrees in
writing to be subject to this Section 5.07. If requested by such managing
underwriter, each holder of Registrable Securities agrees to execute a holdback
agreement, in customary form, consistent with the terms of this Section 5.07(a).
Notwithstanding the foregoing, no Shareholder will be restricted from selling
any Registrable Securities if such Shareholder and its Affiliates beneficially
own a number of shares of Common Stock as of such date of determination equal to
less than five percent (5%) of the outstanding Common Stock.
(b) The Company agrees not to effect any sale or
distribution of any of its equity securities or securities convertible into or
exchangeable or exercisable for any of such
-37-
securities within the 10 days prior to and during the 90 days (unless advised by
the managing underwriter that a longer period, not to exceed 180 days, is
required, or such shorter period as the managing underwriter for any
underwritten offering may agree) beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or S-4 or any successor forms thereto), except that such restriction
shall not prohibit (i) grants of employee stock options or other issuances of
Capital Stock pursuant to the terms of a Company employee benefit plan,
issuances by the Company of Capital Stock pursuant to the exercise of such
options or the exercise of any other employee stock options outstanding on the
date hereof, (ii) the Company from issuing shares of Capital Stock in private
placements pursuant to Section 4(2) of the 1933 Act or in connection with a
strategic alliance, or (iii) the Company from publicly announcing its intention
to issue, or actually issuing, shares of Capital Stock to shareholders of
another entity as consideration for the Company's acquisition of, or merger
with, such entity. In addition, upon the request of the managing underwriter,
the Company shall use its best efforts to cause each holder of its equity
securities or any securities convertible into or exchangeable or exercisable for
any of such securities whether outstanding on the date of this Agreement or
issued at any time after the date of this Agreement (other than any such
securities acquired in a public offering), to agree not to effect any such
public sale or distribution of such securities during such period, except as
part of any such registration if permitted, and to cause each such holder to
enter into a similar agreement to such effect with the Company.
SECTION 5.08. Participation in Registrations. No Shareholder
may participate in any Registration hereunder which is underwritten unless such
Shareholder (a) agrees to sell its securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements, and (b) completes and executes all questionnaires, powers of
attorney, underwriting agreements and other documents customarily required under
the terms of such underwriting arrangements.
SECTION 5.09. Remedies. Each Shareholder shall have the right
and remedy to have the provisions of Sections 5.01 and 5.02 specifically
enforced by any court having jurisdiction in the event that the Company
materially breaches such provisions, and the Company shall reimburse such
Shareholder for the reasonable costs of and expenses for counsel for such
Shareholder incurred in connection with such proceeding.
SECTION 5.10. Other Registration Rights. The Company will not
grant any Person any demand or piggyback registration rights with respect to the
Capital Stock of the Company other than registration rights that would not be in
conflict or inconsistent with the rights of the Shareholders as set forth in
this Article V (it being understood that the Company shall not grant any
registration rights that adversely impact the MCLLC Priority set forth herein).
-38-
SECTION 5.11. Rule 144. The Company shall file any reports
required to be filed by it under the 1933 Act and the 1934 Act and the rules and
regulations adopted by the Commission thereunder, and it will take such further
action as any holder of Registrable Securities may reasonably request to make
available adequate current public information with respect to the Company
meeting the current public information requirements of Rule 144(c) under the
1933 Act, to the extent required to enable such holder to sell Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Notwithstanding the foregoing, nothing in this
Section 5.11 shall be deemed to require the Company to register any of its
securities pursuant to the 1934 Act.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile or similar writing) and shall be given to such party at its
address or telex or facsimile number set forth on the signature pages hereof or
in the relevant Joinder Agreement or such other address or telex or facsimile
number as such party may hereafter specify in writing to the Secretary of the
Company for the purpose by notice to the party sending such communication. Each
such notice, request or other communication shall be effective (i) if given by
telex or facsimile, when such message is transmitted to the number specified on
the signature pages to this Agreement or any Joinder Agreement, (ii) if given by
mail, three (3) business days after such communication is deposited in the mails
registered or certified, return receipt requested, with postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the address specified on the signature pages to this Agreement or any Joinder
Agreement.
SECTION 6.02. Binding Effect; Benefits; Entire Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties to this
Agreement and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended or shall be construed to give any
person other than the parties to this Agreement or their respective successors
or assigns any legal or equitable right, remedy or claim under or in respect of
any agreement or any provision contained herein. This Agreement constitutes the
entire agreement and understanding, and supersedes all prior agreements and
understandings, both oral and written, between the parties hereto relating to
the subject matter hereof.
SECTION 6.03. Waiver. Any party hereto may by written notice
to the other (a) extend the time for the performance of any of the obligations
or other actions of any other party under this Agreement; (b) waive compliance
with any of the conditions or covenants of
-39-
any other party contained in this Agreement; and (c) waive or modify performance
of any of the obligations of any other party under this Agreement. Except as
provided in the preceding sentence, no action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained herein. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any preceding or
succeeding breach and no failure by any party to exercise any right or privilege
hereunder shall be deemed a waiver of such party's rights or privileges
hereunder or shall be deemed a waiver of such party's rights to exercise the
same at any subsequent time or times hereunder.
SECTION 6.04. Amendment. Other than as a result of the
execution and delivery of a Joinder Agreement, this Agreement may not be
amended, modified or supplemented in any respect except by a written instrument
executed by each Shareholder and the Company; provided that this Agreement may
be amended and restated or amended without consent of Shareholders for the
addition of new shareholders after the date hereof if such addition does not
materially and adversely affect the rights of the Shareholders (it being
understood that, subject to Section 5.10, the granting of Demand Registration
rights to new shareholders shall not constitute an adverse effect and that
piggyback registration rights and tag along rights shall not constitute an
adverse effect).
SECTION 6.05. Assignability. Neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by either the Company or any Shareholder except as otherwise
expressly stated hereunder or with the prior written consent of each other
party. A Direct Permitted Transferee who executes a Joinder Agreement in
accordance with the provisions hereof may be assigned any rights available
hereunder. All of the rights offered a Shareholder under this Agreement are
assignable to a Transferee or a Permitted Transferee who executes a Joinder
Agreement, except for the rights set forth in Sections 4.05, 4.06, 4.07 and
5.02. The rights set forth in Sections 4.04 and 5.02 are assignable to a
Transferee or a Permitted Transferee who executes a Joinder Agreement to the
extent provided in Section 4.04 and 5.02(h), respectively.
SECTION 6.06. Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law that would require the application of the laws of another
jurisdiction, and the parties irrevocably submit to (and waive immunity from)
the jurisdiction of the federal and state courts located in the County of New
York in the State of New York.
SECTION 6.07. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not
-40-
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any state or federal
court of New York (this being in addition to any other remedy to which they are
entitled at law or in equity), and each party hereto agrees to waive in any
action for such enforcement the defense that a remedy at law would be adequate.
SECTION 6.08. Severability. If any provision of this Agreement
is declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of the Agreement will not be affected and
will remain in full force and effect.
SECTION 6.09. Additional Securities Subject to Agreement. Each
Shareholder agrees that any other shares of Common Stock which it hereafter
acquires by means of a stock split, stock dividend, distribution, exercise of
options or warrants or otherwise (other than pursuant to a public offering)
whether by merger, consolidation or otherwise (including shares of a surviving
corporation into which the shares of Common Stock are exchanged in such
transaction) will be subject to the provisions of this Agreement to the same
extent as if held on the date hereof, including for purposes of constituting
Registrable Securities hereunder. For purposes hereof, the presently existing
and exercisable warrant held by MCLLC should be deemed exercised.
SECTION 6.10. Section and Other Headings. The section and
other headings contained in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
SECTION 6.11. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument. A
facsimile, telecopy or other reproduction of this Agreement may be executed by
one or more parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request of any party
hereto, all parties hereto agree to execute an original of this Agreement as
well as any facsimile, telecopy or other reproduction hereof.
SECTION 6.12. Termination of Certain Provisions. The
provisions of this Agreement set forth in Sections 3.01, 3.02, 4.01, 4.02, 4.03,
4.04(b) and 4.04(d) will terminate and be of no force and effect upon the
occurrence of a Qualifying Public Equity Offering. The provisions of this
Agreement set forth in Sections 4.04(a) and 4.05 will terminate and be of no
force and effect upon the occurrence of an Initial Public Offering.
-41-
SECTION 6.13. ERISA Matters. The Company agrees to give
Sponsor certain board observation rights and consultation rights to the extent
Sponsor does not have the ability to designate a Person to the Board of
Directors of the Company and failure to have such board observation rights and
consultation rights would cause Sponsor to have an ERISA Problem. For purposes
of this Section 6.13, "ERISA Problem" means that the assets of Sponsor and its
Affiliates would be considered "Plan Assets" within the meaning of 29 CFR
2510.3-101 due to the fact that Sponsor and its Affiliates do not have such
rights.
SECTION 6.14. Regulatory Cooperation. If any Shareholder
reasonably determines that, by reason of any existing or future federal or state
rule, regulation, guideline, order, request or directive (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful) (collectively, a "Regulatory Requirement"), it is effectively
restricted or prohibited from holding any of the shares of Common Stock
(including any shares of Capital Stock or other securities distributable in any
merger, reorganization, readjustment or other reclassification of such shares),
the Company and the other Shareholders shall take such action as may be
reasonably necessary to permit such Shareholder to comply with such Regulatory
Requirement; provided, that no such action pursuant to this Section 6.14 shall
adversely affect the Company, the rights of the other Shareholders hereunder or
the rights, preferences, qualifications and limitations of any Capital Stock of
the Company held by the other Shareholders; provided, further that neither the
Company nor any Shareholder shall be required to purchase any of such shares of
Common Stock as a result of such Regulatory Requirement. Such reasonable action
to be taken may include the Company's authorization of one or more new classes
of non-voting common stock that is otherwise substantially identical to the
Common Stock then owned by such Shareholder and the amendment of the Company's
certificate of incorporation or any other documents or instruments executed in
connection with the shares held by such Shareholder. Such Shareholder shall give
written notice to the Company and the other Shareholders of any such
determination and the actions necessary to comply with such Regulatory
Requirement, and the Company and such other Shareholders shall take all
reasonably necessary steps to comply with such determination as expeditiously as
possible.
SECTION 6.15. Publicity. None of the parties hereto shall
issue any press release or make any public disclosure regarding the transactions
contemplated hereby unless such press release or public disclosure shall be
approved by those parties mentioned in such press release or public disclosure
in advance. Notwithstanding the foregoing, each of the parties hereto may, in
documents required to be filed by it with the Commission or other regulatory
bodies, make such statements with respect to the transactions contemplated
hereby as each may be advised by counsel is legally necessary or advisable, and
may make such disclosure as it is advised by its counsel is required by law.
-42-
SECTION 6.16. MCLLC Securities. Notwithstanding clause (iii)
of the definition of "Permitted Transferee", MCLLC or any controlled Affiliate
of MCLLC (including any wholly-owned subsidiary of MCLLC) may issue any security
(the "Convertible Security") which is convertible or exchangeable into the
Common Stock, provided that concurrently with such issuance the recipient of
such Convertible Security executes a Joinder Agreement agreeing to be bound by
the terms of this Shareholders Agreement as a Shareholder to the extent that the
Convertible Security is converted or exchanged into the Common Stock and agrees
that no subsequent Transfers of such Convertible Security shall be effected
unless such subsequent transferee executes a Joinder Agreement agreeing to be
bound by the terms of this Shareholders Agreement as a Shareholder to the extent
that the Convertible Security is converted or exchanged into the Common Stock.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Company and each Shareholder have
executed this Agreement as of the day and year first above written.
TRIMAS CORPORATION
Date: June 6, 2002 By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP and CFO
Date: July 19, 2002 By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP and CFO
Notices:
TriMas Corporation
00000 Xxxxx Xxxxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
METALDYNE COMPANY LLC
By: /s/ R. Xxxxxxx Xxxxxxx
-----------------------------------
Name: R. Xxxxxxx Xxxxxxx
Title: Secretary
Notices:
00000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board and
General Counsel
Facsimile: (000) 000-0000
MESIROW CAPITAL PARTNERS VIII, L.P.
Dated: July 19, 2002 By: Mesirow Financial Services, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
Notices:
Mesirow Private Equity Investments
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
MESIROW CAPITAL PARTNERS VII, L.P.
Dated: July 19, 2002 By: Mesirow Financial Services, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
Notices:
Mesirow Private Equity Investments
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
GE CAPITAL EQUITY INVESTMENTS, INC.
Date: July 19, 2002 By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Notices:
GE Capital Equity Investments, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
HEARTLAND ENTITY:
TRIMAS INVESTMENT FUND I, L.L.C.
Date: September 11, 2002 By: Heartland Industrial Associates L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
Notices:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
HEARTLAND ENTITY:
TRIMAS INVESTMENT FUND I, L.L.C.
Date: September 11, 2002 By: Heartland Industrial Associates L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Member
Notices:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
MASCO CAPITAL ENTITY:
MASCO CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
Notices:
00000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chairman of the Board and
General Counsel
Facsimile: (000) 000 0000
With a copy to:
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
CANADA PENSION PLAN ENTITY:
HIP SIDE-BY-SIDE PARTNERS, L.P.
By: Heartland Industrial Associates L.L.C.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Member
Notices:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
SCHEDULE 2.04
-------------
Shareholder List
----------------
Trimas Investment Fund I, L.L.C. 10,074,005
Trimas Investment Fund II, L.L.C. 250,995
Masco Capital Corporation 1,250,000
HIP Side-by-Side Partners, L.P. 675,000
Metaldyne Company LLC 6,000,000
GE Capital Equity Investments, Inc.* 750,000
Mesirow Capital Partners VIII, L.P.* 175,000
Mesirow Capital Partners VII, L.P.* 75,000
* Added by amendment and restatement dated as of July 19, 2002.
EXHIBIT A
----------
JOINDER AGREEMENT
WHEREAS, the undersigned is acquiring simultaneously with the
execution of this Agreement common stock (the "Common Stock"), par value $0.01
per share of TriMas Corporation (the "Company"); and
WHEREAS, as a condition to the acquisition of the Common
Stock, the undersigned has agreed to join in a certain Shareholders Agreement
(the "Shareholders Agreement") dated as of June 6, 2002 and amended and restated
as of July 19, 2002 among TriMas Corporation and the Shareholders (as such term
is defined in the Shareholders Agreement); and
WHEREAS, the undersigned understands that execution of this
Agreement is a condition precedent to the acquisition of the Common Stock;
NOW, THEREFORE, as an inducement to both the transferor of the
Common Stock and the other Shareholders (as such term is defined in the
Shareholders Agreement), to Transfer (as such term is defined in the
Shareholders Agreement) and to allow the Transfer of the Common Stock to the
undersigned, the undersigned agrees as follows:
1. The undersigned hereby joins in the Shareholders
Agreement and agrees to be bound by the terms and provisions of the Shareholders
Agreement as provided by the Shareholders Agreement.
2. The undersigned hereby consents that the certificate
or certificates to be issued to the undersigned representing the Common Stock
shall be legended as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN
APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER. ANY SALE PURSUANT TO
CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT
SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH
SALE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
TERMS AND CONDITIONS, INCLUDING WITH RESPECT TO THE DIRECT OR INDIRECT
TRANSFER THEREOF, OF A
SHAREHOLDERS AGREEMENT DATED AS OF JUNE 6, 2002, AS AMENDED AND
RESTATED AS OF JULY 19, 2002. THE SHAREHOLDERS AGREEMENT CONTAINS,
AMONG OTHER THINGS, SIGNIFICANT RESTRICTIONS ON TRANSFER OF THE
SECURITIES OF THE COMPANY. A COPY OF THE SHAREHOLDERS AGREEMENT IS
AVAILABLE UPON REQUEST FROM THE COMPANY."
IN WITNESS WHEREOF, the undersigned has executed this
Agreement this ____ day of _______________, 20__.
---------------------------------------
Name:
Title:
Address:
