EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of ______, 2003 (the
"Agreement"), is by and between UNIVERSAL TECHNICAL INSTITUTE, INC., a Delaware
corporation (the "Company"), and the Persons whose names are set forth on the
signature pages of this Agreement.
RECITALS
A. The Company and the signatories to this Agreement (as well as other
Persons who are not parties hereto) were parties to that Amended and Restated
Stockholders Agreement dated as of April 1, 2002 (the "Prior Agreement"), which
provided in Article V thereof for certain registration rights in respect of
securities of the Company.
B. In connection with the Company's Initial Public Offering (capitalized
terms used without definition are defined in Article I of this Agreement), the
parties to the Prior Agreement agreed to terminate the Prior Agreement in
connection with the consummation of such Initial Public Offering and the
satisfaction of certain conditions, one such condition being that this Agreement
be executed and delivered by the Company and the other Persons whose names are
set forth on the signature pages of this Agreement.
NOW, THEREFORE, in consideration of the agreements, representations,
warranties and indemnities hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Unless otherwise defined herein, capitalized terms used
herein shall have the meaning given to such terms below:
"Affiliate" means with respect to any Person (a) any Person which,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person, (b) any member of
such Person's family or any individual who is a director or an executive officer
(i) of such Person, (ii) of any subsidiary of such Person or (iii) of any Person
described in clause (a) above, or with respect to any Stockholder, the Company.
For purposes of this definition, "control" of a Person shall mean the power,
direct or indirect, (x) to vote or direct the voting of more than 50% of the
outstanding shares of voting stock of such Person or (y) to direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Beneficial Ownership" means "beneficial ownership" as defined in Rule
13d-5 promulgated under the Exchange Act. The terms "Beneficial Ownership" and
"Beneficially Owns" shall have correlative meanings.
"Charlesbank Stockholders" means, collectively, Charlesbank Equity Fund V,
Limited Partnership, CB Offshore Equity Fund V, L.P., Charlesbank Equity
Coinvestment Fund V, Limited Partnership, Coyote Training Group, LLC,
Charlesbank Voting Trust, and their respective Permitted Transferees.
"CHC Stockholders" means White LLC and its Permitted Transferees.
"Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"Common Stock" means the issued and outstanding common stock of the
Company.
"Common Stock Equivalent" means Common Stock and any securities or other
rights of the Company convertible into or exercisable for Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Fully-Diluted Basis" means, (i) when referring to the computation of a
percentage of the shares of Common Stock that would be held by a Stockholder,
the ratio, after giving effect to the full conversion or exercise, as the case
may be, of (A) all outstanding securities of the Company held by such
Stockholder whether or not such securities are then convertible or exercisable,
as the case may be, to (B) the aggregate number of shares of' Common Stock that
would be outstanding after giving effect to the full exercise and conversion, as
the case may be, of any outstanding securities of the Company held by all
security holders, whether or not such securities are then exercisable or
convertible and (ii) when referring to the number of shares of Common Stock held
by a Stockholder, after giving effect to the full conversion or exercise, as the
case may be, of all outstanding securities of the Company held by such
Stockholder, whether or not such securities are then exercisable or convertible.
"GE Capital Stockholders" means GE Capital Equity Holdings. Inc., a
member, of Worldwide Training, Group, LLC, and its Permitted Transferees and
Affiliates.
"Initial Public Offering" means the public offering by the Company of its
Common Stock pursuant to a Form S-1 registration statement (Commission file no.
333-109430) filed by the Company with the Commission, and underwritten by one or
more reputable investment banks, where the aggregate gross proceeds to the
Company from such public offering shall be not less than $50,000,000.
"JZEP" means JZ Equity Partners PLC, a public limited liability company
incorporated in England and Wales.
"JZEP Investors" means JZEP, JZEP Preferred Holdings Limited, a public
limited liability company incorporated in England and Wales, and its Permitted
Transferees.
"Lien" means any lien, mortgage, security interest, claim, restriction,
encumbrance, pledge, hypothecation or interest of any Person, of any kind or
nature.
-2-
"Penske Stockholders" means, collectively, Worldwide Training Group, LLC
and its Permitted Transferees.
"Permitted Transferee" means, in the case of any Stockholder, (a) any
voting trust created, or agreement executed, for the purpose of voting the
shares of Common Stock held by such Stockholder; (b) any member of such
Stockholder's immediate family (as defined in the regulations promulgated under
Section 16 of the Exchange Act), including any child of a deceased or living
spouse of a Stockholder or the child or children of any such child; (c) any
trust created for the benefit of such Stockholder or any of his or her family
members; (d) any legal representative and the testate or intestate
distributee(s) to whom such Stockholder shall transfer any Common Stock at any
time or from time to time; (e) in the case of any Stockholder that is an
Affiliate of The Jordan Company, LLC, any Person listed on Exhibit A attached
hereto and any other Person that is an Affiliate of The Jordan Company; (f) in
the case of any JZEP Investor, any other Person that is an Affiliate of JZEP;
(g) in the case of the White LLC, Xxxx Xxxxx, any member of his immediate family
(as defined above) and any trust primarily for the benefit of Xxxx Xxxxx or any
member of his immediate family; (h) in the case of any Stockholder that is a
Penske Stockholder, to any Affiliate or limited partner or member (or Affiliate
of such limited partner or member) of a Penske Stockholder; (i) in the case of
any Stockholder that is a GE Capital Stockholder, to any Permitted SPV; and (j)
in the case of any Stockholder that is a Charlesbank Stockholder, to any
Affiliate or limited partner or member of a Charlesbank Stockholder.
"Permitted SPV" means a Person for which such GE Capital Stockholder or an
Affiliate thereof (x) holds an irrevocable proxy to vote all of the Shares held
by such Person, (y) retains an economic interest in such person, and (z) has the
power to manage and direct the business affairs and properties of such Person.
"Person" means any individual, partnership, limited liability company,
corporation, association, joint stock company, trust, joint venture,
organization, and any governmental entity or any department, agency or
subdivision thereof.
"Prior Agreement" is defined in Recital A.
"Registration Expenses" has the meaning set forth in Section 2.3.
"Restricted Stock" means all of the Common Stock Equivalents of the
Company. As to any particular Restricted Stock, such securities shall cease to
be Restricted Stock after issuance when (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (b) such securities shall have been
distributed to the public pursuant to Rule 144 (or any successor provision) or
are saleable pursuant to Rule 144(k) (or and, successor provision) under the
Securities Act, (c) such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of them shall not
require registration or qualification of them under the Securities Act or any
similar state law then in force, or (d) such securities shall have ceased to be
outstanding.
-3-
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Senior Manager Stockholders" means, collectively, the UTI Stockholders
and the CHC Stockholders.
"Shares" means, with respect to each Stockholder, the shares of Stock
owned or held by such Stockholder.
"Stock" means the Common Stock and any other capital stock of the Company.
"Stockholder" means each of the parties to this Agreement (other than the
Company) and any Permitted Transferee(s) of such party.
"TJC Stockholders" means, collectively, JZEP, Permitted Transferees of
JZEP, those stockholders set forth on Exhibit A, and the respective Permitted
Transferees of such stockholders.
"Transfer" means any sale, transfer, assignment, pledge, hypothecation,
gift, bequest, granting of a Lien, or other disposition or event of any kind
that would (or could), directly or indirectly, by operation of law or otherwise,
change in any manner the actual or Beneficial Ownership of any shares of Stock.
Each Transfer must comply with all of the terms of this Agreement. Consent by
the Company to Transfers made for estate planning purposes shall not be
unreasonably withheld or delayed.
"UTI Stockholders" means Xxxxxx Xxxxxxx and his Permitted Transferees.
"White LLC" means Whites' Family Company, LLC, a Delaware limited
liability company.
ARTICLE II
REGISTRATION RIGHTS
2.1 Registration Rights.
(a) Requested Registration. If after 180 days following the date on
which the Initial Public Offering has been consummated, the Company shall
receive from any of the TJC Stockholders, the Penske Stockholders or the
Charlesbank Stockholders (the "Initiating Stockholder(s)"), a written
request that the Company effect any registration, the Company shall,
subject to the limitations and conditions hereinafter set forth:
(i) promptly give written notice of the proposed registration
to all other Stockholders; and
(ii) as soon as practicable use its best efforts to register
(including, without limitation, the execution of an undertaking to
file post-effective
-4-
amendments and any other governmental requirements) all Restricted
Stock which the Initiating Stockholder(s) request to be registered,
and all Restricted Stock of other Stockholders who elect to
participate in such registration, pursuant to Section 2.1(b);
provided, that the Company shall not be obligated to file a
registration statement pursuant to this Section 2.1(a):
(A) in any particular state in which the Company would be
required to execute a general consent to service of process in
effecting such registration;
(B) within 360 days following the effective date of any
registered offering of the Company's securities to the general
public in which the Stockholder of Restricted Stock shall have been
able effectively to register all Restricted Stock as to which
registration shall have been requested (excluding, in all events,
the Initial Public Offering;
(C) in any registration which does not either (1) have an
aggregate offering price for the shares offered (before deduction of
underwriting discounts and expenses of sale) of at least $25,000,000
or (2) cover the offer and sale of a number of shares of Common
Stock equal to at least 10% (ten percent) of the total number of
shares of Common Stock outstanding at the time that the request is
made pursuant to Section 2.1(a) (it being agreed that the
determination whether the registration covers at least 10% of such
shares shall be made without regard to any over-allotment option of
the underwriters); or
(D) after the Company has effected, in the case of any demand
by any of the Penske Stockholders, the Charlesbank Stockholders or
the TJC Stockholders, one such registration requested by each of
such collective group of such Stockholders pursuant to this Section
2.1(a) and such registration has been declared or ordered effective
and not withdrawn or suspended, it being understood that each of the
Penske Stockholders, the Charlesbank Stockholders and the TJC
Stockholders shall be entitled to a single demand registration under
this Section 2.1(a) (such that the Company may be required to effect
a maximum of three such registrations pursuant to this Section
2.1(a)), and that the Senior Manager Stockholders do not have
registration rights under this Section 2.1(a).
Notwithstanding the foregoing, the Company may delay in filing a
registration statement and may withhold efforts to cause a registration
statement to become effective, if the Company determines in good faith that such
registration will (i) materially and adversely interfere with or affect the
negotiation or completion of any actual or pending material transaction that is
being contemplated by the Company (whether or not a final decision has been made
to undertake such transaction) at the time the right to delay or withhold
efforts is exercised, or (ii) involve initial or continuing disclosure
obligations that are not in the best interests of the Company's stockholders.
The Company may exercise such right to delay or withhold efforts not more than
once in any period of 12 consecutive months and for not more than ninety (90)
days. Notwithstanding anything to the contrary that may be contained in this
Agreement, if the Company exercises its right to delay or to withhold efforts,
the Company shall use its reasonable best efforts to have the
-5-
registration statement filed or declared effective, as the case may be, at the
earliest practicable date after the Company's reasons for delaying or
withholding efforts are no longer applicable (but subject to the time limitation
in the immediately preceding sentence).
(b) Piggyback Registration. If the Company, at any time pursuant to
Section 2.1(a) or otherwise after consummation of the Initial Public
Offering, proposes or is required to use its best efforts to register any
Common Stock under the Securities Act for sale to the public (other than
pursuant to a registration statement on Forms S-4 or S-8, or any successor
forms), each such time the Company will give written notice to each
Stockholder of its intention to do so. Upon the written request of a
Stockholder received by the Company within 21 days after the giving of any
such notice by the Company, to register such number of shares of
Restricted Stock owned of record or beneficially by such Stockholder
specified in such written request, the Company will use its best efforts
to cause the Restricted Stock as to which registration shall have been so
requested to be included in the shares of Common Stock to be covered by
the registration statement proposed to be filed by the Company, all to the
extent requisite to permit the Transfer by each Stockholder (in accordance
with his, her or its written request) of such Restricted Stock once so
registered. In the event that any registration pursuant to this Section
2.1 shall be, in whole or in part, an underwritten public offering of
Common Stock, the number of shares of Restricted Stock requested to be
included in such an underwriting may be reduced if and to the extent that
the managing underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the shares of Common Stock to be sold by
the Company or any other Person therein. In the event such a reduction is
necessary, (a) if the registration is being made upon the demand of the
Initiating Stockholders pursuant to Section 2.1(a), then the first
priority in such registration shall be given to Restricted Stock owned by
the Stockholders (including the Initiating Stockholder(s)) who request to
participate in such registration pursuant to Sections 2.1(a) or 2.1(b) (on
a pro rata basis in accordance with the number of shares of Restricted
Stock on a Fully-Diluted Basis owned by such Stockholders), and second
priority shall be given in such registration to any shares of Restricted
Stock that the Company desires to issue on its own account; and (b) if the
registration is being made on the Company's account, then the first
priority in such registration shall be given to shares of Common Stock
that the Company desires to issue on its own account, and second priority
shall be given to Restricted Stock owned by the Stockholders who request
to participate in such registration pursuant to Section 2.1(b) (on a pro
rata basis in accordance with the number of shares of Restricted Stock on
a Fully-Diluted Basis owned by such Stockholders). A Stockholder may elect
to withdraw from a registration in which the Stockholder requested to
participate pursuant to Section 2.1(b) all shares of Restricted Stock held
by him, her or it as to which registration was requested. Notwithstanding
the foregoing provisions, the Company may withdraw any registration
statement referred to in this Section 2.1 without thereby incurring any
liability to any Stockholder if such withdrawal otherwise complies with
the terms of Section 2.1(a).
If any registration pursuant to this Section 2.1(b) is an
underwritten offering, the Company and the Stockholders participating in
such offering shall enter into a customary underwriting agreement with the
underwriter(s) administering the offering. A Stockholder may not
participate in any piggyback registration without (i) agreeing to sell
-6-
securities on the basis provided in the underwriting arrangements approved
by the Company, and (ii) completing all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required by the underwriting arrangements.
2.2 Registration Procedures. If and whenever, the Company is required by
the provisions of Section 2.1 hereof to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will promptly:
(a) prepare and file with the Commission a registration statement
(which shall be on any form of general applicability satisfactory to the
managing underwriter (if any) with respect to such securities);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period of distribution and comply with the
provisions of the Securities Act with respect to the disposition of all
Restricted Stock covered by such registration statement in accordance with
the intended method of disposition set forth in such registration
statement for such period;
(c) furnish to each selling Stockholder and to each underwriter such
number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such Persons reasonably
may request in order to facilitate the public sale or other disposition of
the Restricted Stock covered by such registration statement;
(d) use its commercially reasonable best efforts to register or
qualify the Restricted Stock covered by such registration statement under
the securities or "blue sky" laws of such jurisdictions as each selling
Stockholder, or, in the case of an underwritten public offering, the
managing underwriter reasonably shall request; provided, however, that the
Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is
not so qualified or to consent to general service of process in any such
jurisdiction;
(e) use its commercially reasonable best efforts to list the
Restricted Stock that is Common Stock covered by such registration
statement with any securities exchange or the Nasdaq Stock Market National
Market on which the Common Stock of the Company is then listed or quoted;
(f) notify each selling Stockholder at any time when a prospectus
relating to Restricted Stock is required to be delivered under the
Securities Act of 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 any fact necessary to make the
statements therein not misleading, and the Company, will prepare a
supplement or amendment to such prospectus (at the expense of the party
making or omitting such material fact) so that, as thereafter delivered to
the purchasers of such Restricted Stock, such prospectus will not contain
an untrue statement of a material fact or omit to state any
-7-
fact necessary to make the statements therein not misleading; provided
that the 90-day period described below will be tolled from the time a
prospectus contains such a statement or omission until a prospectus
correcting such statement or omission has been delivered to the
Stockholder and may be delivered to the purchasers of such Restricted
Stock in compliance with the Securities Act;
(g) notify each selling Stockholder immediately, and confirm the
notice in writing, (1) when the registration statement becomes effective,
(2) of the issuance by the Commission of any stop order or of the
initiation, or the written threat, of any proceedings for that purpose,
(3) of the receipt by the Company of any notification with respect to the
suspension of qualification of the Restricted Stock for sale in any
jurisdiction or of the initiation, or the written threat, of any
proceedings for that purpose, and (4) of the receipt of any comments, or
requests for additional information, from the Commission or any state
regulatory authority. If the Commission or any state regulatory authority
shall enter such a stop order or order suspending qualification at any
time, the Company will promptly use its best efforts to obtain the lifting
of such order; and
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders as soon as reasonably practicable, but not later than 15
months after the effective date of the registration statement, an earnings
statement covering a period of at least 12 months beginning after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act.
For purposes hereof, the period of distribution of Restricted Stock in a
firm commitment underwritten public offering shall be deemed to extend until
each underwriter has completed the distribution of all securities purchased by
it, and the period of distribution of Restricted Stock in any other registration
shall be deemed to extend until the earlier of the sale of all Restricted Stock
covered thereby or 90 days after the effective date thereof.
In connection with each registration hereunder each Stockholder will
furnish to the Company in writing such information with respect to it as a
stockholder as shall be necessary in order to assure compliance with federal and
applicable state securities laws.
In connection with each registration pursuant to Section 2.1 hereof
covering an underwritten public offering, (i) the Company and each selling
Stockholder agree to enter into a written agreement with the managing
underwriter in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature, including but not
limited to a customary lockup agreement, and (ii) each selling Stockholder
agrees to convert any Common Stock Equivalents that are being registered and
sold into Common Stock upon the consummation of such registration and sale.
2.3 Expenses. All reasonable expenses incurred by the Company in complying
with Section 2.1 or 2.2 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and the
independent auditor for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state
-8-
securities or `blue sky" laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars, and fees
and disbursements of one counsel for the sellers of Restricted Stock, but
excluding any Selling Expenses (as defined below), are called "Registration
Expenses." All underwriting discounts and selling commissions applicable to the
sale of Restricted Stock are called "Selling Expenses."
(a) The Company shall pay all Registration Expenses attributable to
the shares of Restricted Stock of the Stockholders included in the
registration in connection with each registration statement under Section
2.1 or 2.2 hereof.
(b) All Selling Expenses in connection with each registration
statement under Section 2.1 or 2.2 hereof shall be borne by the selling
Stockholders in proportion to the number of shares of Common Stock sold by
each Stockholder.
2.4 Indemnification and Contribution.
(a) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to Section 2.1 or 2.2 hereof, the
Company will indemnify, and hold harmless each Stockholder (provided any
such Stockholder is a seller of Restricted Stock thereunder), each
underwriter of such Restricted Stock thereunder, and, each other Person,
if any, who controls such Stockholder, its directors and its officers or
underwriters within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such
Stockholder, such underwriter or such Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statements of any material fact
contained in any registration statement under which any shares of
Restricted Stock were registered under the Securities Act pursuant to
Section 2.1 or 2.2 hereof, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the
Company (other than a violation arising from any action or inaction
required of the Company by any applicable regulatory authority in
connection with any registration, qualification or compliance), and will
reimburse each such Stockholder, each such underwriter and each such
Person for any legal or other expenses reasonably incurred by any of them
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not
be liable in any such case if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission (i) so made in
conformity with information furnished by such Stockholder, such
underwriter or such Person in writing specifically for use in such
registration statement or prospectus or (ii) made in any preliminary
prospectus or any amendment or supplement thereto, if a copy of the final
prospectus, or any amendment or supplement, if applicable, was not
delivered by or on behalf of such underwriter or a Stockholder (if such
Stockholder had a duty, under applicable law or agreement, to deliver the
same) to the person asserting any claim against such
-9-
underwriter or such Stockholder and the untrue statement or alleged untrue
statement in or omission or alleged omission from such preliminary
prospectus or any amendment or supplement thereto was corrected in the
final prospectus, or any amendment or supplement, if applicable, unless
such failure to deliver the final prospectus or any amendment or
supplement was a result of noncompliance by the Company with Section
2.2(c) hereof.
(b) In the event of a registration of any of the shares of
Restricted Stock under the Securities Act pursuant to Section 2.1 or 2.2
hereof, each Stockholder including shares of Restricted Stock in such
registration, severally, but not jointly, will indemnify and hold harmless
the Company, each Person, if any, who controls the Company within the
meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter,
and each Person who controls any underwriter within the meaning of the
Securities Act, against all losses, claims, damages or liabilities, joint
or several, to which such Person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the registration statement under which any shares of Restricted Stock were
registered under the Securities Act pursuant to Section 2.1 or 2.2 hereof,
any preliminary prospectus, or final prospectus contained therein, or any
amendment hereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such officer,
director, underwriter and controlling Person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that each such Stockholder will be liable hereunder in any such
case only to the extent that any such loss, claim, damage or liability
arises out of or is based upon, an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with information pertaining to such Stockholder, as such,
respectively, furnished in writing to the Company by such Stockholder
specifically for use in such registration statement or prospectus;
provided further that, in any such case, no such holder will be liable for
any amount in excess of the net proceeds received from the sale of
Restricted Stock offered by such holder pursuant to such registration
statement. In no event will any Stockholder be required to enter into any
agreement or undertaking in connection with any registration under this
Agreement providing for any indemnification or contribution obligation on
the part of such Stockholder greater than any other Stockholder's
obligation under this Section 2.4(b).
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to such indemnified party other than under
this Article 2 and shall only relieve it from any liability which it may
have to such indemnified party under this Article 2 if and to the extent
the indemnifying party is prejudiced by such omission. In case any such
action shall be brought against any
-10-
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake
the defense thereof with counsel satisfactory to such indemnified party,
and, after notice from the indemnifying party to such indemnified party of
its election so to assume and undertake the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Article 2 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation and of liaison with counsel so selected;
provided, however, that, if the defendants in any such action include both
the indemnified party, and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable expenses
and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (1) any
holder of Restricted Stock exercising rights under this Agreement, or any
controlling Person of any such holder, makes a claim for indemnification
pursuant to this Article 2 but it is judicially determined (by the entry
of a final judgment or decree by a court of competent jurisdiction and the
expiration or time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding
the fact that this Article 5 provides for indemnification in such case, or
(2) contribution under the Securities Act may be required on the part of
any such selling holder of Restricted Stock or any such controlling Person
in circumstances for which indemnification is provided under this Article
2; then, and in each such case, the Company and such holder will
contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in such
proportion so that such holder is responsible for the portion represented
by the percentage that the public offering proceeds of its Restricted
Stock offered by the registration statement bears to the public offering
proceeds of all securities offered by such registration statement, and the
Company shall be responsible for the remaining portion; provided, however,
that, in any such case, (A) no such holder will be required to contribute
any amount in excess of the net proceeds received from the sale of
Restricted Stock offered by such holder pursuant to such registration
statement; and (B) no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
2.5 Changes in Capital Structure. If, and as often as, there is any change
in the capital structure of the Company by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the registration
rights granted in this Article 2 shall continue with respect to the capital
structure of the Company as so changed.
-11-
2.6 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of a Stockholder's Common Stock to the public without registration, at all
times after 90 days after any registration statement covering a public offering
of securities of the Company under the Securities Act shall have become
effective, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports as such Stockholder may reasonably request
in availing itself of any rule or regulation of the Commission allowing
such Stockholder to sell any Restricted Stock without registration.
2.7 Conversion of Common Stock Equivalents. In order to have any
Restricted Stock that is not Common Stock registered and sold in connection with
any registration pursuant to this Article II, a Stockholder must convert such
Restricted Stock into Common Stock or exercise such Restricted Stock for Common
Stock in connection with the consummation of such registration and sale.
2.8 Termination of Registration Rights. The right of a Stockholder under
this Agreement to request or demand registration pursuant to Section 2.1(a)
shall terminate and be of no further force or effect from and after the date on
which for any reason such Stockholder (together with all of its Permitted
Transferees) ceases to beneficially own at least five percent (5%) of the issued
and outstanding shares of the Common Stock. The right of a Stockholder under
this Agreement to request registration pursuant to Section 2.1(b) shall
terminate and be of no further force or effect from and after the date on which
for any reason such Stockholder (together with all of its Permitted Transferees)
ceases to beneficially own at least one percent (1%) of the issued and
outstanding shares of the Common Stock.
ARTICLE III
MISCELLANEOUS
3.1 Amendments and Waivers. Each Stockholder agrees that no purported
amendment of this Agreement, or waiver, discharge or termination of any
obligation under it, shall be enforceable or admissible unless, and only to the
extent expressly set forth in a writing signed by Stockholders who Beneficially
Own at least a majority of the Common Stock Equivalents; provided, that no such
amendment, waiver, discharge or termination shall be effective as against the
Charlesbank Stockholders, the Penske Stockholders, the TJC Stockholders, the UTI
Stockholders or the CHC Stockholders without the consent of such Stockholders if
such amendment, waiver, discharge or termination materially and adversely
-12-
affects such Stockholders' rights or obligations hereunder. The failure of any
party hereto to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or subsequent
breach.
3.2 Notices. Any notice, request, demand or other communications provided
for in this Agreement ("Notice") shall be given in writing and if delivered
personally, sent by registered or certified mail (return receipt requested),
sent by overnight mail or courier service or sent by facsimile transmission
(with a confirmation copy sent within one day) shall be addressed, in the case
of the Company to Universal Technical Institute, Inc., 00000 Xxxxx 00xx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxx, Senior Vice
President and Chief Financial Officer, with a copy to Xxxxx Xxxx LLP, Xxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxx X.
Xxxxxxxxxx; and in the case of a Stockholder, to his, her or its address
included on the signature page hereto, or in either case, to such other Persons
or addresses as shall be furnished in writing by any party to the other parties
hereto. Notice shall be deemed to have been given on the date personally
delivered or sent by facsimile transmission or such return receipt is issued or
the day after if sent by overnight mail or courier.
3.3 Assignment. This Agreement and all of the provisions hereof will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and Permitted Transferees, provided, that the right of a Stockholder
under this Agreement to request or demand registration pursuant to Section
2.1(a) shall only inure to the benefit of any successor or Permitted Transferee
to the extent that any such Stockholder expressly assigns such right to such
successor or Permitted Assignee.
3.4 Severability, Etc. This Agreement shall be governed by, construed,
applied and enforced in accordance with the laws of the state of New York,
except that no doctrine of choice of law shall be used to apply any law other
than that of the state of New York, and no defense, counterclaim or right of
set-off given or allowed by the laws of any other state or jurisdiction, or
arising out of the enactment, modification or repeal of any law, regulation,
ordinance or decree of any foreign jurisdiction, shall be interposed in any
action hereon. Each party waives personal service of process and agrees that a
summons and complaint commencing an action or proceeding shall be properly
served and shall confer personal jurisdiction if served by registered or
certified mail to the party at the address set forth in this Agreement, or as
otherwise provided by the laws of the state of New York or the United States.
3.5 No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any Person.
3.6 Headings. The headings used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and will not be
deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement will be enforced and construed
as if no heading had been used in this Agreement.
-13-
3.7 Complete Agreement. This document contains the complete agreement
among the parties with respect to the subject matter hereof and supersedes any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way,
including, without limitation, the Prior Agreement.
3.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.9 Attorneys' Fees. If any legal action or other proceeding is commenced
to enforce or interpret any provision of, or otherwise relating to, this
Agreement, the losing party shall pay the prevailing party's reasonable expenses
incurred in the investigation of any claim leading to the proceeding,
preparation for and participation in the proceeding, any appeal or other post
judgment motion, and any action to enforce or collect the judgment, including
contempt, garnishment, levy, discovery and bankruptcy. "Expenses" shall include,
without limitation, court or other proceeding costs and experts' and attorneys'
fees and their expenses. The phrase "prevailing party" shall mean the party who
is determined in the proceeding to have prevailed and who prevails by dismissal,
default or otherwise.
3.10 Effective Time of this Agreement. The parties to this Agreement
intend and agree that this Agreement shall be effective without further action
by any Person from and after the consummation of the Initial Public Offering.
[Remainder of page is blank; signatures follow.]
-14-
IN WITNESS WHEREOF, the undersigned duly executed this Agreement by
themselves or by their respective representatives thereunto duly authorized.
UNIVERSAL TECHNICAL INSTITUTE, INC.
By:
--------------------------------------------------
Its:
-------------------------------------------------
JZ EQUITY PARTNERS, PLC
By:
--------------------------------------------------
Xxxxx X. Xxxxxxxxx, Authorized Signatory
c/o Jordan/Zalaznick Advisers, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
WHITES' FAMILY COMPANY, LLC
By:
--------------------------------------------------
Xxxx X. Xxxxx, President
10305 East Calle de las Brisas
Xxxxxxxxxx, Xxxxxxx 00000
-----------------------------------------------------
Xxxxxx X. Xxxxxxx
00000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
WORLDWIDE TRAINING GROUP, LLC
By:
--------------------------------------------------
Its:
-------------------------------------------------
x/x Xxxxxx Xxxxxxx Xxxxxxxx, X.X.X.
Xxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxx
-15-
and
c/o Penske Capital Partners, L.L.C.
00000 Xxxxx Xxxx Xxxxx, Xxxxx X00
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx., Esq.
CHARLESBANK VOTING TRUST
By: Charlesbank Equity Fund V, Limited
Partnership, as Voting Trustee
By: Charlesbank Equity Fund V GP,
Limited Partnership, its General
Partner
By: Charlesbank Capital Partners, LLC,
its General Partner
By:
--------------------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
CHARLESBANK EQUITY FUND V, LIMITED PARTNERSHIP
By: Charlesbank Equity Fund V GP,
Limited Partnership, its General
Partner
By: Charlesbank Capital Partners, LLC,
its General Partner
By:
--------------------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
-16-
CB OFFSHORE EQUITY FUND V, L.P.
By: Charlesbank Equity Fund V GP,
Limited Partnership, its Managing
General Partner
By: Charlesbank Capital Partners, LLC,
its General Partner
By:
--------------------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
Address for Charlesbank Stockholders:
c/o Charlesbank Capital Partners LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
-17-
The undersigned, each a Permitted Transferee of The Jordan Company and
identified on Exhibit A to the within Registration Rights Agreement, agrees to
be bound by the terms and provisions of said Agreement as of the date first
above written
XXXX X. XXXXXX, XX REVOCABLE TRUST
-----------------------------------------------
Xxxx X. Xxxxxx XX, Trustee
-----------------------------------------------
Xxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxxxx X. Xxxxxxx
-----------------------------------------------
A. Xxxxxxx Xxxxxx
-----------------------------------------------
Xxxx X. Max
-----------------------------------------------
Xxxx X. Xxxxxx
THE XXXXXX FAMILY TRUST
-----------------------------------------------
Xxxx X. Xxxxxx, Trustee
XXXXX X. XXXXXX, XX.S PROFIT SHARING PLAN TRUST
-----------------------------------------------
Xxxxx X. Xxxxxx, Xx., Trustee
-----------------------------------------------
Xxxxxxx X. Xxxx
-----------------------------------------------
Xxxx Xxxxxxxx
LEUCADIA INVESTORS, INC.
By:
--------------------------------------------
Title:
-----------------------------------------
-2-
EXHIBIT A
Additional Permitted Transferees of The Jordan Company, LLC
1. Xxxx X. Xxxxxx, XX Revocable Trust
2. Xxxxx X. Xxxxxxxxx
3. Xxxxxxxx X. Xxxxxxx
4. A. Xxxxxxx Xxxxxx
5. Xxxx X. Max
6. Xxxx X. Xxxxxx
7. The Xxxxxx Family Trust
8. Xxxxx X. Xxxxxx, Xx. Profit Sharing Plan and Trust
9. Xxxxxxx X. Xxxx
10. Xxxx Xxxxxxxx and/or Xxxx Xxxxxxxx Profit Sharing Plan and Trust
11. Leucadia Investors, Inc.
-3-
