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REGISTRATION RIGHTS AGREEMENT
by and among
BLACKSTONE CAPITAL COMPANY II, L.L.C.,
HEARTLAND INDUSTRIAL PARTNERS, L.P.,
XXXXXXXXXXX/C&A HOLDINGS, L.L.C.,
and
XXXXXXX & XXXXXX CORPORATION
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Dated: February 23, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Definitions........................................................2
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 Grant of Rights....................................................5
2.2 Registrable Securities.............................................5
2.3 Holders of Registrable Securities..................................5
ARTICLE III
DEMAND REGISTRATION
3.1 Request for Demand Registration....................................5
3.2 Incidental or "Piggy-Back" Rights with Respect to a
Demand Registration..............................................7
3.3 Effective Demand Registration......................................7
3.4 Expenses...........................................................8
3.5 Underwriting Procedures............................................8
3.6 Selection of Underwriters..........................................8
ARTICLE IV
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
4.1 Request for Incidental Registration................................9
4.2 Expenses..........................................................10
ARTICLE V
HOLDBACK AGREEMENTS
5.1 Restrictions on Public Sale by Designated Holders.................10
5.2 Restrictions on Public Sale by the Company........................10
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ARTICLE VI
REGISTRATION PROCEDURES
6.1 Obligations of the Company........................................11
6.2 Seller Information................................................14
6.3 Notice to Discontinue.............................................15
6.4 Registration Expenses.............................................15
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.1 Indemnification by the Company....................................16
7.2 Indemnification by Designated Holders.............................17
7.3 Conduct of Indemnification Proceedings............................17
7.4 Contribution......................................................18
ARTICLE VIII
COVENANTS
8.1 Rule 144..........................................................19
8.2 Xxxxxxxxxxx and Blackstone Priority of Sale.......................19
ARTICLE IX
MISCELLANEOUS
9.1 Recapitalizations, Exchanges, etc.................................19
9.2 No Inconsistent Agreements........................................20
9.3 Remedies..........................................................20
9.4 Notices...........................................................20
9.5 Successors and Assigns; Third Party Beneficiaries.................22
9.6 Amendments and Waivers............................................23
9.7 Counterparts......................................................23
9.8 Headings..........................................................23
9.9 GOVERNING LAW.....................................................23
9.10 Severability......................................................23
9.11 Rules of Construction.............................................23
9.12 Entire Agreement..................................................23
9.13 Further Assurances................................................24
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Page
9.14 Other Agreements..................................................24
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated February 23, 2001, by and among
Xxxxxxx & Xxxxxx Corporation, a Delaware corporation (the "Company"), Heartland
Industrial Partners, L.P. ("Heartland") and the other investor stockholders
listed on Schedule 1 hereto (together with Heartland, the "Investors"),
Blackstone Capital Company II, L.L.C. ("Blackstone Capital II"), Blackstone
Family Investment Partnership I L.P. ("Blackstone Family"), Blackstone Advisory
Directors Partnership L.P. ("Blackstone Advisory") and Blackstone Capital
Partners, L.P. ("Blackstone Capital") (together with Blackstone Capital II,
Blackstone Family and Blackstone Advisory, "Blackstone") and Xxxxxxxxxxx/C&A
Holdings, L.L.C. ("Xxxxxxxxxxx," together with Blackstone, the "Original
Stockholders").
WHEREAS, pursuant to the Share Purchase Agreement, dated January 12, 2001
(the "Company Stock Purchase Agreement"), by and between the Company and
Heartland, the Company is selling to the Investors (x) an aggregate of 1,000,000
shares of Non-Voting Convertible Preferred Stock, par value $.01 per share (the
"Convertible Preferred Shares"), which is convertible into 16,510,000 shares of
Common Stock, par value $ 0.01 per share, of the Company (the "Common Stock")
and (y) 8,490,000 shares (the "Treasury Shares") of Common Stock.
WHEREAS, pursuant to the Stock Purchase Agreement, dated January 12, 2001
(the "Secondary Stock Purchase Agreement" and, together with the Company Stock
Purchase Agreement, the "Stock Purchase Agreements"), the Original Stockholders
are selling to the Investors an aggregate of 27,000,000 shares of Common Stock;
WHEREAS, concurrently herewith, the Company, the Investors and the Original
Stockholders are entering into the Stockholders Agreement (as hereinafter
defined), pursuant to which the parties thereto have agreed to, among other
things, certain first offer and tag-along rights, preemptive rights and certain
corporate governance rights and obligations; and
WHEREAS, in order to induce each of the Investors to purchase its shares of
Common Stock as provided in the Stock Purchase Agreements, and to induce the
parties hereto to enter into the Stockholders Agreement, the Company has agreed
to grant registration rights with respect to the Registrable Securities (as
hereinafter defined) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, and unless the context requires
a different meaning, the following terms have the meanings indicated:
"Affiliate" has the meaning specified in the Stockholders Agreement.
"Agreement" means this Agreement as the same may be amended, supplemented
or modified in accordance with the terms hereof.
"Approved Underwriter" has the meaning set forth in Section 3.6.
"Blackstone Holders or Stockholders" means Blackstone and its Permitted
Transferees and Partner Transferees to whom Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement and
Section 9.5 of this Agreement.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"Commission" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"Common Stock" has the meaning set forth in the preamble to this Agreement
or any other capital stock of the Company into which such stock is reclassified
or reconstituted and any other common stock of the Company and shall include the
Convertible Preferred Shares for all purposes of this Agreement, whether or not
converted.
"Company" has the meaning set forth in the preamble to this Agreement.
"Company Underwriter" has the meaning set forth in Section 4.1.
"Convertible Preferred Shares" has the meaning set forth in the preamble to
this Agreement.
"Demand Registration" has the meaning set forth in Section 3.1.
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"Designated Holder" means each of the Investors, the Major Stockholders and
any transferee of any of them to whom Registrable Securities have been
transferred in accordance with Section 9.5, other than a transferee to whom
Registrable Securities have been transferred pursuant to a Registration
Statement under the Securities Act or Rule 144 or Regulation S under the
Securities Act (or any successor rule thereto).
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Heartland" has the meaning set forth in the preamble to this Agreement.
"Heartland Entities" has the meaning ascribed thereto in the Stockholders
Agreement.
"Holder's Counsel" has the meaning set forth in Section 6.1(a).
"Incidental Registration" has the meaning set forth in Section 4.1.
"Indemnified Party" has the meaning set forth in Section 7.3.
"Indemnifying Party" has the meaning set forth in Section 7.3.
"Initiating Holders" has the meaning set forth in Section 3.1.
"Inspector" has the meaning set forth in Section 6.1(g).
"Investors" has the meaning set forth in the preamble to this Agreement.
"Investor Stockholders" means each Investor and any Permitted Transferee
thereof to whom Registrable Securities are transferred in accordance with
Section 2.2 of the Stockholders Agreement and Section 9.5 of this Agreement.
"Liability" has the meaning set forth in Section 7.1.
"Major Stockholders" means each Original Stockholder and any Permitted
Transferee or Partner Transferee thereof to whom Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement and
Section 9.5 of this Agreement.
"Majority of the Investor Stockholders" means the Investor Stockholders
holding a majority of the Registrable Securities held by all Investor
Stockholders.
"Majority of Blackstone Stockholders" means the Blackstone Stockholders
holding a majority of the Registrable Securities held by all Blackstone
Stockholders.
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"Majority of Xxxxxxxxxxx Stockholders" means the Xxxxxxxxxxx Stockholders
holding a majority of the Registrable Securities held by all Xxxxxxxxxxx
Stockholders.
"NASD" means the National Association of Securities Dealers, Inc.
"Partner Transferee" has the meaning ascribed to such term in the
Stockholders Agreement.
"Permitted Transferee" has the meaning ascribed to such term in the
Stockholders Agreement.
"Person" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, government (or an agency or political subdivision
thereof) or other entity of any kind, and shall include any successor (by merger
or otherwise) of such entity.
"Records" has the meaning set forth in Section 6.1(g).
"Registrable Securities" means, subject to Section 2.2, each of the
following: (a) any and all shares of Common Stock owned by the Designated
Holders and (b) any shares of Common Stock issued or issuable to any of the
Designated Holders with respect to the Registrable Securities by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise and
any shares of Common Stock or voting common stock issuable upon conversion,
exercise or exchange thereof.
"Registration Expenses" has the meaning set forth in Section 6.4.
"Registration Statement" means a registration statement filed pursuant to
the Securities Act.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Valid Business Reason" has the meaning set forth in Section 3.1.
"Xxxxxxxxxxx Holders or Stockholders" means Xxxxxxxxxxx and its Permitted
Transferees and Partner Transferees to whom Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement and
Section 9.5 of this Agreement.
Any terms not defined herein shall have the meanings ascribed thereto in
the Stockholders Agreement.
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ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 Grant of Rights. The Company hereby grants registration rights to the
Designated Holders upon the terms and conditions set forth in this Agreement.
2.2 Registrable Securities. For the purposes of this Agreement, Registrable
Securities will cease to be Registrable Securities, when (i) a Registration
Statement covering such securities has been declared effective under the
Securities Act by the Commission and such securities have been disposed of
pursuant to such effective Registration Statement or (ii) (x) with respect to a
Designated Holder, the entire amount of such Designated Holder's Registrable
Securities may be sold in a single sale, in the opinion of counsel satisfactory
to the Company and the Designated Holder, each in their reasonable judgment,
without any limitation as to volume pursuant to Rule 144 (or any successor
provision then in effect) under the Securities Act and (y) the Designated Holder
owning such Registrable Securities owns less than one percent (1%) of the
outstanding shares of Common Stock on a fully diluted basis.
2.3 Holders of Registrable Securities. A Person is deemed to be a holder of
Registrable Securities whenever such Person owns of record Registrable
Securities, or holds an option to purchase, or a security convertible into or
exercisable or exchangeable for, Registrable Securities whether or not such
acquisition or conversion has actually been effected. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities. Registrable Securities issuable upon exercise of an
option or upon conversion of another security shall be deemed outstanding for
the purposes of this Agreement.
ARTICLE III
DEMAND REGISTRATION
3.1 Request for Demand Registration. Blackstone or Blackstone Holders
designated by Blackstone (the "Initiating Blackstone Holders"), Xxxxxxxxxxx or
Xxxxxxxxxxx Holders designated by Xxxxxxxxxxx (the "Initiating Xxxxxxxxxxx
Holders"), and Heartland or an Investor Stockholder designated by the Heartland
Entities (the "Initiating Investor Holders," each of the Initiating Blackstone
Holders, the Initiating Xxxxxxxxxxx Holders and the Initiating Investor Holders
shall be known as the "Initiating Holders," as appropriate), may each make a
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written request to the Company to register, and the Company shall register,
under the Securities Act (other than pursuant to a Registration Statement on
Form S-4 or S-8 or any successor thereto) a "Demand Registration", the number of
Registrable Securities stated in such request; provided, however, that the
Company shall not be obligated to effect (x) more than four (4) such Demand
Registrations at the request of Initiating Investor Holders, and (y) in the
aggregate not more than four (4) such Demand Registrations at the request of
Initiating Blackstone and Initiating Xxxxxxxxxxx Holders: two of which shall be
at the request of Initiating Blackstone Holders and two of which shall be at the
request of Initiating Xxxxxxxxxxx Holders. For purposes of the preceding
sentence, two or more Registration Statements filed in response to one demand
shall be counted as one Demand Registration; provided, however, that any such
Registration Statement filed at the request of an Initiating Holder and
subsequently withdrawn at the request of that Initiating Holder shall be counted
as a Demand Registration unless the withdrawing Initiating Holder pays the
expenses associated with such Registration Statement in which case such
Registration shall not be so counted. Notwithstanding anything to the contrary
contained herein, no Demand Registration need be effected by the Company within
six (6) months after the effectiveness of any registration statement pursuant to
a Demand Registration. The Company shall not be obliged to include more than 10
million Shares (as equitably adjusted for stock splits, stock combinations and
similar events) in any Registration Statement pursuant to a Demand Registration,
inclusive of any Shares to be included pursuant to any incidental or piggy-back
rights under this Agreement. If the Board of Directors, in its good faith
judgment, determines that any registration of Registrable Securities should not
be made or continued because it would materially interfere with any material
financing, acquisition, corporate reorganization or merger or other material
transaction involving the Company (a "Valid Business Reason"), the Company may
(x) postpone filing a registration statement relating to a Demand Registration
until such Valid Business Reason no longer exists, but in no event for more than
ninety (90) days, and (y) in case a registration statement has been filed
relating to a Demand Registration, if the Valid Business Reason has not resulted
from actions taken by the Company, the Company, upon the approval of a majority
of the Board of Directors, such majority to include at least one Investor
Director and the Blackstone Director, if applicable, and the Xxxxxxxxxxx
Director, if applicable, may cause such registration statement to be withdrawn
and its effectiveness terminated or may postpone amending or supplementing such
registration statement. The Company shall give written notice of its
determination to postpone or withdraw a registration statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof. Notwithstanding
anything to the contrary contained herein, the Company may not postpone or
withdraw a filing under this Section 3.1 more than once in any twelve (12) month
period. Each request for a Demand Registration by the Initiating Holders shall
state the amount of the Registrable Securities proposed to be sold and the
intended method of disposition thereof.
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3.2 Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration. Each of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 3.1) may offer its or his
Registrable Securities under any Demand Registration pursuant to this Section
3.2. Within five (5) Business Days after the receipt of a request for a Demand
Registration from an Initiating Holder, the Company shall (i) give written
notice thereof to all of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 3.1) and (ii) subject to
Section 3.5, include in such registration all of the Registrable Securities held
by such Designated Holders from whom the Company has received a written request
for inclusion therein within ten (10) days of the receipt by such Designated
Holders of such written notice referred to in clause (i) above. Each such
request by such Designated Holders shall specify the number of Registrable
Securities proposed to be registered. The failure of any Designated Holder to
respond within such 10-day period referred to in clause (ii) above shall be
deemed to be a waiver of such Designated Holder's rights under this Article III
with respect to such Demand Registration. Any Designated Holder may waive its
rights under this Article III prior to the expiration of such 10-day period by
giving written notice to the Company, with a copy to the Initiating Holders. If
a Designated Holder sends the Company a written request for inclusion of part or
all of such Designated Holder's Registrable Securities in a registration, such
Designated Holder shall not be entitled to withdraw or revoke such request
without the prior written consent of the Company in its sole discretion unless,
as a result of facts or circumstances arising after the date on which such
request was made relating to the Company or to market conditions, such
Designated Holder reasonably determines that participation in such registration
would have a material adverse effect on such Designated Holder.
3.3 Effective Demand Registration. The Company shall use its reasonable
best efforts to cause any such Demand Registration to become effective not later
than sixty (60) days after it receives a request under Section 3.1 hereof. A
registration shall not constitute a Demand Registration until it has become
effective and remains continuously effective for the shorter of (i) 90 days and
(ii) the period during which all Registrable Securities registered in the Demand
Registration are sold; provided, however, that a registration shall not
constitute a Demand Registration if (x) after such Demand Registration has
become effective, such registration or the related offer, sale or distribution
of Registrable Securities thereunder 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 not attributable to the Initiating Holders and
such interference is not thereafter eliminated or (y) the conditions specified
in the underwriting agreement, if any, entered into in connection with such
Demand Registration are not satisfied or waived, other than by reason of a
failure by the Initiating Holder or (z) the Company exercises its rights of
postponement, termination or withdrawal under Section 3.1.
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3.4 Expenses. The Company shall pay all Registration Expenses in connection
with a Demand Registration, whether or not such Demand Registration becomes
effective.
3.5 Underwriting Procedures. If the Company or the Initiating Holders
holding a majority of the Registrable Securities held by all of the Initiating
Holders so elect, the Company shall use its reasonable best efforts to cause
such Demand Registration to be in the form of a firm commitment underwritten
offering and the managing underwriter or underwriters selected for such offering
shall be the Approved Underwriter selected in accordance with Section 3.6. In
connection with any Demand Registration under this Article III involving an
underwritten offering, none of the Registrable Securities held by any Designated
Holder making a request for inclusion of such Registrable Securities pursuant to
Section 3.2 hereof shall be included in such underwritten offering unless such
Designated Holder accepts the terms of the offering as agreed upon by the
Company, the Initiating Holders and the Approved Underwriter (including
execution of an escrow agreement and/or a power of attorney with respect to the
disposition of the Registrable Securities), and then only in such quantity as
will not, in the opinion of the Approved Underwriter, jeopardize the success of
such offering by the Initiating Holders. If the Approved Underwriter advises the
Company that the aggregate amount of such Registrable Securities requested to be
included in such offering is sufficiently large to have a material adverse
effect on the success of such offering, then the Company shall include in such
registration only the aggregate amount of Registrable Securities that the
Approved Underwriter believes may be sold without any such material adverse
effect and shall reduce the amount of Registrable Securities to be included in
such registration, first as to the Company and any holder of capital stock of
the Company who is not a Designated Holder, second as to the Investors as a
group, pro rata based on the number of Registrable Securities owned by each
Investor and third as to Blackstone Holders and Xxxxxxxxxxx Holders as a group,
pro rata based on the number of Registrable Securities then owned by each.
3.6 Selection of Underwriters. If any Demand Registration, as the case may
be, of Registrable Securities is in the form of an underwritten offering, the
Company shall select and obtain an investment banking firm of national
reputation to act as the managing underwriter of the offering (the "Approved
Underwriter"); provided, however, that the Approved Underwriter shall, in any
case, also be approved by the Initiating Holders such approval not to be
unreasonably withheld.
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ARTICLE IV
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
4.1 Request for Incidental Registration. If the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering by
the Company for its own account (other than a Registration Statement on Form S-4
or S-8 or any successor thereto) (a "Company Offering") or for the account of
any stockholder of the Company other than the Designated Holders (each such
Stockholder, a "Non-Designated Stockholder" and such offering a "Non-Designated
Stockholder Offering"), then the Company shall give written notice of such
proposed filing to each of the Designated Holders at least ten (10) Business
Days before the anticipated filing date, and such notice shall describe the
proposed registration and distribution and offer such Designated Holders the
opportunity to register the number of Registrable Securities as each such
Designated Holder may request (an "Incidental Registration"). The Company shall
use its reasonable best efforts to cause the managing underwriter or
underwriters in the case of a proposed underwritten offering (the "Company
Underwriter") to permit each of the Designated Holders who have requested in
writing to participate in the Incidental Registration to include its or his
Registrable Securities in such offering on the same terms and conditions as the
securities of the Company or the securities of such Non-Designated Stockholders,
as the case may be, included therein. In connection with any Incidental
Registration under this Section 4.1 involving an underwritten offering, the
Company shall not be required to include any Registrable Securities in such
underwritten offering unless the Designated Holders thereof accept the terms of
the underwritten offering as agreed upon between the Company, such
Non-Designated Stockholders, if any, and the Company Underwriter (including
execution of an escrow agreement and/or a power of attorney with respect to the
disposition of the Registrable Securities), and then only in such quantity as
the Company Underwriter believes will not jeopardize the success of the offering
by the Company. If the Company Underwriter determines that the registration of
all or part of the Registrable Securities which the Designated Holders have
requested to be included would materially adversely affect the success of such
offering, then the Company shall be required to include in such Incidental
Registration, to the extent of the amount that the Company Underwriter believes
may be sold without causing such adverse effect, (i) in the case of a Company
Offering: first, all of the securities to be offered for the account of the
Company; second, the Registrable Securities to be offered for the account of
Blackstone Holders and Xxxxxxxxxxx Holders, pro rata based on the number of
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Registrable Securities then owned by each; and third, any other securities
requested to be included in such offering by the Investors and any other Person
pro rata based on the number of Registrable Securities then owned by each; and
(ii) in the case of a Non-Designated Stockholder Offering: first, the
Registrable Securities to be offered for the account of Blackstone Holders and
Xxxxxxxxxxx Holders pro rata based on the number of Registrable Securities owned
by each; second, all of the securities to be offered for the account of the
Company, such Non-Designated Stockholder and the Investors pro rata based on the
number of securities then owned by each. Nothing in this Section 4.1 shall
create any liability on the part of the Company or any other person to the
Designated Holders if the Company, for any reason, decides not to file a
Registration Statement proposed to be filed pursuant to this Section 4.1 or to
withdraw such Registration Statement subsequent to its filing, regardless of any
action whatsoever that a Designated Holder may have taken, whether as a result
of the issuance by the Company of any notice under this Section 4.1 or
otherwise.
4.2 Expenses. The Company shall bear all Registration Expenses in
connection with any Incidental Registration pursuant to this Article IV, whether
or not such Incidental Registration becomes effective.
ARTICLE V
HOLDBACK AGREEMENTS
5.1 Restrictions on Public Sale by Designated Holders. To the extent
requested (A) by the Company or the Initiating Holders, as the case may be, in
the case of a non-underwritten public offering and (B) by the Approved
Underwriter or the Company Underwriter, as the case may be, in the case of an
underwritten public offering, each Designated Holder of Registrable Securities
agrees (x) not to effect any sale or distribution of any Registrable Securities
or of any securities convertible into or exchangeable or exercisable for such
Registrable Securities, including a sale pursuant to Rule 144 under the
Securities Act, or offer to sell, contract to sell (including without limitation
any short sale), grant any option to purchase or enter into any hedging or
similar transaction with the same economic effect as a sale of Registrable
Securities and (y) not to make any request for a Demand Registration under this
Agreement, during the one hundred-twenty (120) day period or such shorter
period, if any, agreed to by the requesting party beginning on the effective
date of such Registration Statement (except as part of such registration). No
Designated Holder of Registrable Securities subject to this Section 5.1 shall be
released from any obligation under any agreement, arrangement or understanding
entered into pursuant to this Section 5.1 except to the extent all other
Designated Holders of Registrable Securities subject to the same obligation are
also released.
5.2 Restrictions on Public Sale by the Company. The Company agrees not to
effect any sale or distribution of any of its securities, or any securities
convertible into or exchangeable or exercisable for such securities (except
pursuant to registrations on Form S-4 or S-8 or any successor thereto), during
the period beginning on the effective date of any Regis-
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tration Statement in which the Designated Holders of Registrable Securities are
participating and ending on the earlier of (i) the date on which all Registrable
Securities registered on such Registration Statement are sold and (ii) one
hundred-twenty (120) days after the effective date of such Registration
Statement (except as part of such registration).
ARTICLE VI
REGISTRATION PROCEDURES
6.1 Obligations of the Company. Whenever registration of Registrable
Securities has been requested pursuant to Article III or Article IV of this
Agreement, the Company shall use its reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(a) prepare and file with the Commission a Registration Statement on
any form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for the
sale of such Registrable Securities in accordance with the intended method
of distribution thereof, and use its reasonable best efforts to cause such
Registration Statement to become effective; provided, however, that (x)
before filing a Registration Statement or prospectus or any amendments or
supplements thereto, the Company shall provide counsel selected by the
Designated Holders holding a majority of the Registrable Securities being
registered in such registration ("Holders' Counsel") and any other
Inspector with a reasonably adequate and appropriate opportunity to review
and comment on such Registration Statement and each prospectus included
therein (and each amendment or supplement thereto) to be filed with the
Commission, subject to such documents being under the Company's control,
and (y) the Company shall notify the Holders' Counsel and each seller of
Registrable Securities of any stop order issued or threatened by the
Commission and take all action required to prevent the entry of such stop
order or to remove it if entered;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for the lesser of (x) 90 days and (y) such shorter
period which will terminate when all Registrable Securities covered by such
Registration Statement have been sold, and comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such
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Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
Registration Statement;
(c) furnish to each seller of Registrable Securities, prior to filing
a Registration Statement, at least one copy of such Registration Statement
as is proposed to be filed, and thereafter such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case
including all exhibits thereto), and the prospectus included in such
Registration Statement (including each preliminary prospectus) and any
prospectus filed under Rule 424 under the Securities Act as each such
seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) register or qualify such Registrable Securities under such other
securities or "blue sky" laws of such jurisdictions as any seller of
Registrable Securities may reasonably request, and to continue such
qualification in effect in such jurisdiction for as long as required
pursuant to the laws of such jurisdiction, or for as long as any such
seller reasonably requests or until all of such Registrable Securities are
sold, whichever is shortest, and do any and all other acts and things which
may be reasonably necessary or advisable to enable any such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall
not be required to (x) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section
6.1(d), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction;
(e) notify each seller of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as
a result of which, the prospectus included in such Registration Statement
contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and the Company shall promptly prepare a supplement
or amendment to such prospectus and furnish to each seller of Registrable
Securities a reasonable number of copies of such supplement to or an
amendment of such prospectus as may be necessary so that, after delivery to
the purchasers of such Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(f) enter into and perform customary agreements (including an
underwriting agreement in customary form with the Approved Underwriter or
Company Under-
-13-
writer, if any, selected as provided in Article III or Article IV, as the
case may be) and take such other actions as are prudent and reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities;
(g) make available at reasonable times for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition of such Registrable Securities pursuant to a Registration
Statement, Holders' Counsel and any attorney, accountant or other agent
retained by any such seller or any managing underwriter (each, an
"Inspector" and collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company and
its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence responsibility,
and cause the Company's and its subsidiaries officers, directors and
employees, and the independent public accountants of the Company, to supply
all information reasonably requested by any such Inspector in connection
with such Registration Statement. Records that the Company determines, in
good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors (and the Inspectors
shall confirm their agreement in writing in advance to the Company if the
Company shall so request) unless (x) the disclosure of such Records is
necessary, in the Company's judgment, to avoid or correct a misstatement or
omission in the Registration Statement, (y) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction after exhaustion of all appeals therefrom or (z) the
information in such Records was known to the Inspectors on a
non-confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Each seller of Registrable
Securities agrees that it shall, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Records deemed
confidential;
(h) if such sale is pursuant to an underwritten offering, cause to be
delivered "cold comfort" letters dated the effective date of the
registration statement and the date of the closing under the underwriting
agreement from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by "cold
comfort" letters as Holders' Counsel or the managing underwriter reasonably
requests;
(i) if such sale is pursuant to an underwritten offering, cause to be
furnished, at the request of any seller of Registrable Securities on the
date such securities are delivered to the underwriters for sale pursuant to
such registration or, if such securities are not being sold through
underwriters, on the date the Registration Statement with respect to such
securities becomes effective, an opinion, dated such date, of counsel
rep-
-14-
resenting the Company for the purposes of such registration, addressed to
the underwriters, if any, and to the seller making such request, covering
such legal matters with respect to the registration in respect of which
such opinion is being given as the underwriters, if any, and such seller
may reasonably request and are customarily included in such opinions;
(j) comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable but no later than fifteen (15) months after the
effective date of the Registration Statement, an earnings statement
covering a period of twelve (12) months beginning after the effective date
of the Registration Statement, in a manner which satisfies the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed, provided that the applicable listing requirements are
satisfied;
(l) keep Holders' Counsel advised in writing as to the initiation and
progress of any registration under Article III or Article IV hereunder;
(m) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with the NASD;
(n) make officers available to participate in customary road shows and
other informational meetings as reasonably requested by any Approved
Underwriter or Company Underwriter (it being understood that the Company,
in its discretion, may require that there be "road shows" and other
informational meetings in connection with a Demand Registration); and
(o) take all other steps reasonably necessary to effect the
registration of the Registrable Securities contemplated hereby.
6.2 Seller Information. It shall be a condition precedent to the obligation
of the Company to include any Registrable Securities of any Designated Holder in
a Registration Statement pursuant to this Agreement that the Designated Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, any other securities of the Company held by it, and the
intended method of disposition of such Registrable Securities as shall be
required to effect the registration of the Registrable Securities held by such
Designated Holder, including, without limitation, all information required to be
disclosed in order to make the information previously furnished to the Company
by such Desig-
-15-
nated Holder not materially misleading or necessary to cause such Registration
Statement not to omit a material fact with respect to such Designated Holder
necessary in order to make the statements therein not misleading. Any such
Information shall be provided to the Company within any reasonable time period
requested by the Company.
(a) Each Designated Holder shall notify the Company, at any time when a
prospectus is required to be delivered under applicable law, of the happening of
any event as a result of which the prospectus included in the applicable
Registration Statement, as then in effect, in each case only with respect to
information provided by such Holder, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing. Such Designated Holder shall immediately upon the
happening of any such event cease using such prospectus.
6.3 Notice to Discontinue. Each Designated Holder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 6.1(e) or 6.2(b), such Designated Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Designated Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 6.1(e) and, if so directed by the Company, such Designated Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Designated Holder's possession, of the
prospectus covering such Registrable Securities which is current at the time of
receipt of such notice. If the Company shall give any such notice, the Company
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement (including, without limitation,
the period referred to in Section 6.1(b)) by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6.1(e) to and including the date when sellers of such Registrable
Securities under such Registration Statement shall have received the copies of
the supplemented or amended prospectus contemplated by and meeting the
requirements of Section 6.1(e).
6.4 Registration Expenses. The Company shall pay all expenses arising from
or incident to its performance of, or compliance with, this Agreement,
including, without limitation, (i) Commission, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in complying
with securities or "blue sky" laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with "blue
sky" qualifications of the Registrable Securities as may be set forth in any
underwriting agreement), (iii) all printing, messenger and delivery expenses,
(iv) the fees, charges and disbursements of counsel to the Company and of its
independent public accountants and any other accounting fees, charges and
expenses incurred by the Company (including, without limitation, any expenses
arising from any "cold comfort" letters or any special audits incident
-16-
to or required by any registration or qualification), (v) the reasonable fees,
charges and disbursements of one counsel to all Designated Holders not to exceed
$35,000 and (vi) any liability insurance or other premiums for insurance
obtained in connection with any Demand Registration or piggy-back registration
thereon or Incidental Registration pursuant to the terms of this Agreement,
regardless of whether such Registration Statement is declared effective. All of
the expenses described in the preceding sentence of this Section 6.4 are
referred to herein as "Registration Expenses." The Designated Holders of
Registrable Securities sold pursuant to a Registration Statement shall bear the
expense of any broker's commission, underwriter's discount or commission or
transfer taxes relating to registration and sale of such Designated Holders
Registrable Securities and, subject to clause (v) above, shall bear the fees and
expenses of their own counsel.
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Designated Holder, its partners, directors, officers,
affiliates and each Person who controls (within the meaning of Section 15 of the
Securities Act) such Designated Holder from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) (each, a "Liability" and collectively, "Liabilities"), arising
out of or based upon any untrue, or allegedly untrue, statement of a material
fact contained in any Registration Statement, prospectus or preliminary
prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading under the
circumstances such statements were made, except insofar as such Liability (i)
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission contained in such Registration Statement,
preliminary prospectus or final prospectus in reliance and in conformity with
information concerning such Designated Holder furnished in writing to the
Company by such Designated Holder expressly for use therein, including, without
limitation, the information furnished to the Company pursuant to Section 6.2, or
(ii) is caused by any failure by the Designated Holder to deliver a prospectus
or preliminary prospectus (or amendment or supplement thereto) as and when
required under the Securities Act after such prospectus has been timely
furnished by the Company . The Company shall also provide customary indemnities
to any underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
Section 15 of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Designated Holders of Registrable
Securities.
-17-
7.2 Indemnification by Designated Holders. Each Designated Holder agrees to
indemnify and hold harmless the Company, any underwriter retained by the
Company, each of their respective officers, directors and affiliates and each
Person who controls the Company or such underwriter (within the meaning of
Section 15 of the Securities Act) to the same extent as the foregoing indemnity
from the Company to the Designated Holders, but only if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with information with respect to such Designated Holder furnished
in writing to the Company by such Designated Holder expressly for use in such
registration statement or prospectus, including, without limitation, the
information furnished to the Company pursuant to Section 6.2; provided, however,
that the total amount to be indemnified by such Designated Holder pursuant to
Section 6.2 shall be limited to the net proceeds received by such Designated
Holder in the offering to which the Registration Statement or prospectus
relates.
7.3 Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the indemnifying party (the "Indemnifying Party") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided, however, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any Liability
that it may have to the Indemnified Party hereunder (except to the extent that
the Indemnifying Party is materially prejudiced or otherwise forfeits
substantive rights or defenses by reason of such failure). If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the
extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be paid by the Indemnified Party unless (i) the Indemnifying Party
agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense
of such action with counsel reasonably satisfactory to the Indemnified Party or
(iii) the named parties to any such action (including any impleaded parties)
include both the Indemnifying Party and the Indemnified Party and such parties
have been advised by such counsel that either (x) representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying Party. In
any of such cases, the Indemnifying Party shall not have the right to assume the
defense of such action on behalf of such Indemnified Party, it being understood,
however, that the Indemnifying Party shall not be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all Indemni-
-18-
fied Parties. No Indemnifying Party shall be liable for any settlement entered
into without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the consent of such Indemnified
Party, which consent shall not be unreasonably withheld, effect any settlement
of any pending or threatened proceeding in respect of which such Indemnified
Party is a party and indemnity has been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability for claims that are the subject matter of
such proceeding.
7.4 Contribution. If the indemnification provided for in this Article 7
from the Indemnifying Party is unavailable to an Indemnified Party hereunder in
respect of any Liabilities referred to herein, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such Liabilities in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions which resulted in
such Liabilities, as well as any other relevant equitable considerations. The
relative faults of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the Liabilities referred to above shall be deemed to include, subject
to the limitations set forth in Sections 7.1, 7.2 and 7.3, any legal or other
fees, charges or expenses reasonably incurred by such party in connection with
any investigation or proceeding; provided that the total amount to be
contributed by such Designated Holder shall be limited to the net proceeds
received by such Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
-19-
ARTICLE VIII
COVENANTS
8.1 Rule 144. The Company covenants that it shall (a) file any reports
required to be filed by it under the Exchange Act and (b) take such further
action as each Designated Holder of Registrable Securities may reasonably
request (including providing any information necessary to comply with Rule 144
under the Securities Act), all to the extent required from time to time to
enable such Designated Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or Regulation S under the Securities Act or (ii) any similar
rules or regulations hereafter adopted by the Commission. The Company shall,
upon the request of any Designated Holder of Registrable Securities, deliver to
such Designated Holder a written statement as to whether it has complied with
such requirements.
8.2 Xxxxxxxxxxx and Blackstone Priority of Sale. Notwithstanding anything
to the contrary set forth in this Agreement, in the event of any offering of
Common Stock, whether pursuant to a public offering, private placement or other
exempt sale in which Blackstone Holders and/or Xxxxxxxxxxx Holders, on the one
hand, and any other stockholder of the Company (including, without limitation,
any Investor), on the other hand, desire or intend to sell Common Stock,
Blackstone Holders and Xxxxxxxxxxx Holders, pro rata based on the number of
shares of Common Stock then owned by each, shall have an absolute right to sell
prior to the right of any other such holder. The foregoing rights of priority
will not preclude the grant by the Company of any demand or piggyback rights to
any other person that do not conflict with the provisions of this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Recapitalizations, Exchanges, etc. The provisions of this Agreement
shall apply to the full extent set forth herein with respect to (i) the shares
of Common Stock, (ii) any and all shares of common stock of the Company into
which the shares of Common Stock are converted, exchanged or substituted in any
recapitalization or other capital reorganization by the Company and (iii) any
and all equity securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in conversion of, in exchange for or in
substitution of, the
-20-
shares of Common Stock and shall be appropriately adjusted for any stock
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof. The Company shall cause any successor or assign
(whether by merger, consolidation, sale of assets or otherwise) to enter into a
new registration rights agreement with the Designated Holders on terms
substantially the same as this Agreement as a condition of any such transaction.
9.2 No Inconsistent Agreements. The Company represents and warrants that it
has not granted to any Person the right to request or require the Company to
register any securities issued by the Company, other than the rights granted to
the Designated Holders herein. The Company shall not enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Designated Holders in this Agreement or grant any additional registration
rights to any Person or with respect to any securities which are not Registrable
Securities which are prior in right to or inconsistent with the rights granted
in this Agreement.
9.3 Remedies. The Designated Holders, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, shall be
entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
9.4 Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be made by telecopier,
courier service or personal delivery:
(a) if to the Company:
Xxxxxxx & Xxxxxx Corporation
0000 Xxx Xxxx Xxxxx
Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, CEO
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq. General Counsel
-21-
with a copy to:
Xxxxxx Xxxxxxx & Xxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
(b) if to Heartland:
Heartland Industrial Partners, L.P.
00 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: W. Xxxxxx Xxxxx, Esq.
Xxxxxxxx X. Xxxxxxxxx, Esq.
(c) if to any Blackstone Holders:
Blackstone Capital Partners L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxx
-22-
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Esq.
(d) if to Xxxxxxxxxxx:
Wasserstein, Perella Management Partners
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X'Xxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
All such notices, demands and other communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when delivered
by courier, if delivered by commercial courier service; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 9.4 designate another address or Person for receipt
of notices hereunder.
9.5 Successors and Assigns; Third Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto as hereinafter provided. The Demand Registration rights
and related rights of the Investor Stockholders and Major Stockholders contained
in Article III hereof, shall be with respect to any Registrable Security that is
transferred to a Permitted Transferee of an Investor Stockholder or Major
Stockholder, automatically transferred to such transferee who agrees to be bound
hereby. The incidental or "piggy-back" registration rights of the Designated
Holders contained in Section 3.2 and Article IV hereof and the other rights of
each of the Desig-
-23-
nated Holders with respect thereto shall be, with respect to any Registrable
Security, automatically transferred to any Person who is the transferee of such
Registrable Security, but only if transferred in compliance with the
Stockholders Agreement. All of the obligations of the Company hereunder shall
survive any such transfer. Any assignment in violation of this Agreement shall
be null and void. Except as provided in Article VII, no Person other than the
parties hereto and their successors and permitted assigns is intended to be a
beneficiary of this Agreement.
9.6 Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless consented to in writing by (i) the Company, (ii) a Majority of the
Investor Stockholders, (iii) a Majority of Blackstone Stockholders and (iii) a
Majority of Xxxxxxxxxxx Stockholders. Any such written consent shall be binding
upon the Company and all of the Designated Holders.
9.7 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
9.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
9.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
9.10 Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
9.11 Rules of Construction. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
9.12 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained
-24-
herein. There are no restrictions, promises, representations, warranties or
undertakings, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such subject matter.
9.13 Further Assurances. Each of the parties shall, and shall cause their
respective Affiliates to, execute such documents and perform such further acts
as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
9.14 Other Agreements. Nothing contained in this Agreement shall be deemed
to be a waiver of, or release from, any obligations any party hereto may have
under, or any restrictions on the transfer of Registrable Securities or other
securities of the Company imposed by, any other agreement including, but not
limited to, the Stock Purchase Agreements or the Stockholders Agreement.
[Remainder of page intentionally left blank]
S-1
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed this Agreement on the date first written above.
XXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BLACKSTONE CAPITAL PARTNERS L.P.
By: Blackstone Management Associates L.P.,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
BLACKSTONE ADVISORY DIRECTORS PARTNERSHIP L.P.
By: Blackstone Management Associates L.P.,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP I L.P.
By: Blackstone Management Associates I L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
S-2
BLACKSTONE CAPITAL COMPANY II L.L.C.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
XXXXXXXXXXX/C&A HOLDINGS, L.L.C.
By: /s/ Xxxxxxx X. X'Xxxxxxx
---------------------------------------------------
Name: Xxxxxxx X. X'Xxxxxxx
Title: President
HEARTLAND INDUSTRIAL PARTNERS, L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
HEARTLAND INDUSTRIAL PARTNERS (FF), L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
HEARTLAND INDUSTRIAL PARTNERS (E1), L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
HEARTLAND INDUSTRIAL PARTNERS (K1), L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
HEARTLAND INDUSTRIAL PARTNERS (C1), L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Member
Schedule I
Investors
Heartland Industrial Partners (FF), L.P.
Heartland Industrial Partners (E1), L.P.
Heartland Industrial Partners (K1), L.P.
Heartland Industrial Partners (C1), L.P.
