Exhibit 4.3
FORM OF
INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT, dated as of ________, 2004 (this
"Agreement"), by and among Alliance Laundry Holdings, Inc., a Delaware
corporation (the "Company") the entities listed on Exhibit 1 attached hereto
(including successors, assigns and Transferees thereof, collectively "Xxxx
Funds"), the entities listed on Exhibit 2 attached hereto (including successors,
assigns and Transferees thereof, collectively "BRS Investors"), each of the
Securityholders listed on Exhibit [__] hereto (including any heirs, personal
representatives, successors, assigns and transferees thereof, "Management" and
each a "member of Management"; Xxxx Funds, BRS Investors and Management,
collectively, the "Holders."
BACKGROUND
1. The Company has effected an initial public offering of Income Depositary
Securities ("IDSs") representing shares of the Company's Class A Common Stock
and $_______ aggregate principal amount of ____% Senior Subordinated Notes due
2019 of the Company ("Senior Subordinated Notes") pursuant to an effective
registration statement under the Securities Act (as defined herein) in the
United States.
2. The Holders will own IDSs and Class B Common Stock (as defined below). Upon
any sale of such shares of Class B Common Stock by a Holder, at the option of
such Holder, the Company has agreed to exchange with the purchasers thereof a
portion of such shares of Class B Common Stock for an amount of Class A Common
Stock and Senior Subordinated Notes such that the purchasers thereof shall be
able to combine the applicable number of shares of Class A Common Stock and
principal amount of Senior Subordinated Notes to form integral numbers of IDSs.
3. The Company has agreed to provide certain registration rights to the Holders
with respect to their shares of Class B Common Stock (which include the exchange
rights described in paragraph 3 above) and any IDSs they hold upon the terms and
subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall have
the following respective meanings:
"Agreement" shall have the meaning specified in the introductory paragraph
hereto.
"Xxxx Funds" shall have the meaning specified in the introductory paragraph
hereto.
"BRS Investors" shall have the meaning specified in the introductory paragraph
hereto.
"Class A Common Stock" means the Company's class A common shares, par value
$0.01 per share.
"Class A Common Stock Equivalents" shall mean any stock, warrants, rights,
calls, options, debt or other securities exchangeable or exercisable for or
convertible into Class A Common Stock.
"Class B Common Stock" means the Company's class B common shares, par value
$0.01 per share.
"Class C Common Stock" means the Company's class C common shares, par value
$0.01 per share.
"Common Stock" means the Company's Class A Common Stock, Class B Common Stock
and the Class C Common Stock and any securities issued or distributed in respect
thereof, or in substitution therefor, in connection with any stock split,
dividend, spin-off or combination, or any reclassification, recapitalization,
merger, consolidation, exchange or other similar reorganization or business
combination.
"Company" shall have the meaning specified in the introductory paragraph hereto.
"Company Offering" shall have the meaning specified in Section 2.6(a) hereto.
"Delay Notice" shall have the meaning specified in Section 2.6(b) hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time.
"Governmental Entity" shall mean any court, department, body, board, bureau,
administrative agency or commission or other governmental authority or
instrumentality in the United States.
"Holders" shall have the meaning specified in the introductory paragraph hereto.
"IDSs" shall have the meaning specified in the Recitals hereto.
"Information Delay Notice" shall have the meaning specified in Section 2.6(b)
hereto.
"Indenture" shall mean the indenture, dated as of [ ], 2004 among the Company,
Alliance Laundry Holdings, Inc. and the Bank of New York, as Trustee.
"Inspectors" shall have the meaning specified in Section 5.1(l) hereto.
"Majority Holders" shall mean the Holders of a majority of the voting power of
all such securities (including IDSs) held by such Holders; provided that all
such securities shall be treated as having the voting rights of any underlying
securities.
"Majority Sellers" shall mean a majority (based on the number of Registrable
Securities owned) of the Holders eligible to sell pursuant to this Agreement.
"Management" shall have the meaning specified in the introductory paragraph
hereto.
"NASD" shall have the meaning specified in this Section 1.1 (under "Registration
Expenses" below).
"Person" shall mean an individual, corporation, limited liability company,
association, partnership, group (as defined in Section 13(d)(3) of the Exchange
Act), trust, joint venture, business trust or unincorporated organization,
Governmental Entity or any other entity of any nature whatsoever.
"register," "registered" and "registration" refer to a registration effected by
preparing and filing a registration statement in compliance with the Securities
Act and the effectiveness of such registration statement.
"Registrable Securities" shall mean Class A Common Stock, IDSs, Senior
Subordinated Notes and the IDSs into which shares of Class B Common Stock may be
exchanged and any shares of Class A Common Stock owned or to be acquired upon
conversion, exercise or exchange of Class A Common Stock Equivalents, in each
case now or hereafter owned by the Holders or any Transferee thereof. As to any
particular Registrable Securities, once issued, such Registrable Securities
shall cease to be Registrable Securities when (i) a registration statement with
respect to the sale by the applicable Holder of such securities has become
effective under the Securities Act, and such securities have been disposed of in
accordance with such registration statement or prospectus, as the case may be,
(ii) such securities have been distributed to the public pursuant to Rule 144
(or any successor provision) under the Securities Act, (iii) such securities
have been otherwise transferred, new certificates for such securities not
bearing a legend restricting further transfer have been delivered by the Company
and subsequent disposition of such securities does not require registration or
qualification of such securities under the Securities Act or any state
securities or blue sky law then in force, or (iv) such securities have ceased to
be outstanding.
"Registration Expenses" shall mean all expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
all SEC, stock exchange or quotation system and National Association of
Securities Dealers, Inc. (the "NASD") filing fees and expenses, fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and underwriters in connection with blue sky qualifications of the
Registrable Securities), rating agency fees, printing expenses, messenger,
telephone and delivery expenses, the fees and expenses incurred in connection
with the listing of the securities to be registered on
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any securities exchange or quotation system, fees and disbursements of counsel
for the Company and all independent certified public accountants (including the
expenses of any annual audit, special audit and "cold comfort" letters required
by or incident to such performance and compliance), securities laws liability
insurance (if the Company so desires), the fees and disbursements of
underwriters (including all fees and expenses of any "qualified independent
underwriter" required by the rules of the NASD) customarily paid by issuers or
sellers of securities, the expenses customarily borne by the issuers of
securities in a "road show" presentation to potential investors, the reasonable
fees and disbursements of one legal counsel for the selling Holders in each
registration (as selected by the Majority Sellers), the reasonable fees and
expenses of any special experts retained by the Company in connection with such
registration, and fees and expenses of other persons retained by the Company
(but not including any underwriting discounts or commissions (which shall be
paid or borne by the selling Holder) or transfer taxes, if any, attributable to
the sale of Registrable Securities) and other reasonable out-of-pocket expenses
of the Holders.
"Requesting Party" shall have the meaning specified in Section 2.1 hereto.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from time to
time.
"Senior Subordinated Notes" shall have the meaning specified in the Recitals
hereto.
"Shelf Registration" shall have the meaning specified in Section 2.4 hereto.
"Transaction Delay Notice" shall have the meaning specified in Section 2.6(a)
hereto.
"Transferee" shall mean any Person to whom any Holder or any Transferee thereof
transfers Registrable Securities, including any Person who purchases shares of
Class B Common Stock from the Holders and receives Class A Common Stock and
Senior Subordinated Notes combinable into IDSs from the Company in exchange.
ARTICLE II
DEMAND REGISTRATION
2.1 Request for Registration. After compliance with the procedures set
forth herein, upon the written request of any Holder (other than Management)
(the "Requesting Party"), at any time after, [ ], 2004 (and subject to the
procedures of this paragraph), requesting that the Company effect the
registration under the Securities Act of all or part of the Registrable
Securities and specifying the intended method of disposition thereof, and
provided that such Holder beneficially owns more than 1% of the outstanding
shares of Class A Common Stock, Class B Common Stock, Senior Subordinated Notes,
or IDSs, as the case may be, the Company will use its best efforts to effect the
registration under the Securities Act of such Registrable Securities (which
registration shall also include any Registrable Securities requested by the
other Holders to be included in such registration request made by the Requesting
Party). Prior to making such request, the Requesting Party shall notify the
other Holders (other than Management) of its intent to make such request and,
upon the affirmative decision of the
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Majority Holders (other than Management) to proceed with such request, afford
such other Holders the opportunity to include Registrable Securities in such
request. The Requesting Party, any other selling Holder and the Company shall
consult with one another at the beginning of, and throughout, the registration
process to coordinate the timing of the proposed offering, among other things,
with respect to the existence of any material business combination discussions
that may be ongoing. Notwithstanding the foregoing, in no event shall the
Company have any obligation to effect an underwritten public offering under this
Section 2.1 unless the amount of the Registrable Securities requested to be
included in such offering would result in initial aggregate proceeds (determined
at the time of the time of the initial filing of the registration statement
relating thereto) in excess of $10.0 million; provided, however, that if the
Holders have at least one demand registration right remaining, the Holders may
make a demand registration pursuant to this Section 2.1 if such demand
registration is for the remaining shares of Registrable Securities of such
Holders, even if such offering would result in initial aggregate proceeds
(determined at the time of the time of the initial filing of the registration
statement relating thereto) less than $10.0 million. Notwithstanding anything in
this Article II to the contrary, in no event will the Holders collectively be
entitled to more than 4 registrations pursuant to this Section 2.1, except that
the following shall not constitute a registration for this purpose: a
registration so requested (i) that is not deemed to have been effected pursuant
to Section 2.3 or (ii) where the number of Registrable Securities included by
the Holders in such registration and sold pursuant thereto is less than 75% of
the number of shares of Registrable Securities sought to be included by the
Holders in such registration.
2.2 Registration Statement Form. If any registration requested pursuant to
this Article II which is proposed by the Company to be effected by the filing of
a registration statement on Form S-3 (or any successor or similar short-form
registration statement) shall be in connection with an underwritten public
offering, and if the managing underwriter shall advise the Company in writing
that, in its opinion, the use of another form of registration statement is of
material importance to the success of such proposed offering, then such
registration shall be effected on such other form. The Company agrees to include
in any registration statement all information which, in the reasonable opinion
of counsel to the underwriters, if any, the selling Holders or the Company, is
required to be included.
2.3 Effective Registration Statement. A registration requested pursuant to
this Article II shall not be deemed to have been effected:
(a) unless a registration statement with respect thereto has become
effective and remained effective in compliance with the provisions of the
Securities Act for at least six months with respect to the disposition of all
Registrable Securities covered by such registration statement or, if earlier,
until such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition thereof set forth in such
registration statement, other than primarily as a result of acts or omissions of
any selling Holder or any authorized agent thereof;
(b) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other Governmental Entity for any reason not attributable to any
selling Holder or any of their Affiliates and has not thereafter become
effective; or
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(c) if the conditions to closing specified in the underwriting
agreement, if any, entered into in connection with such registration are not
satisfied or waived.
2.4 Shelf Registration. If the Company has used and is then generally
using registration statements pursuant to Rule 415 under the Securities Act (the
"Shelf Registration") for the sale of IDSs or Class A Common Stock, the Majority
Sellers shall be permitted to request that any registration under this Article
II be made under a Shelf Registration. The Company shall use its reasonable best
efforts to keep such Shelf Registration continuously effective for the period
beginning on the date on which the Shelf Registration is declared effective and
ending on the first date that there are no Registrable Securities covered by
such registration. During the period during which the Shelf Registration is
effective, the Company shall supplement or make amendments to the Shelf
Registration, if required by the Securities Act or if reasonably requested by
the Majority Sellers or an underwriter of Registrable Securities, including to
reflect any specific plan of distribution or method of sale, and shall use its
reasonable best efforts to have such supplements and amendments declared
effective, if required, as soon as practicable after filing.
2.5 Priority in Requested Registrations. If a requested registration
pursuant to this Article II involves an underwritten offering and the managing
underwriter (in consultation with the underwriter appointed by the Majority
Sellers pursuant to Section 2.8 below) advises the Company and the Holders in
writing that, in its opinion, the number of securities requested to be included
in such registration by all Holders, the Company and other holders (including
securities of the Company which are not Registrable Securities and which the
holder thereof has the right to include in any such registration) exceeds the
largest number of securities which can be sold without reasonably expecting to
have an adverse effect on such offering, including the price at which such
securities can be sold, the number of such securities to be included in such
registration shall be reduced to such extent, and the Company shall include in
such registration such maximum number of securities as follows: (a) first, all
the Registrable Securities requested to be included in such registration by the
Holders, (b) second, to the extent that the number of Registrable Securities
which the Holders have requested to be included in such registration is less
than the number of securities which the Company has been advised can be sold in
such offering without having the adverse effect referred to above, all the
securities which the Company proposes to sell for its own account and (c) third,
to the extent that the number of securities which the Holders have requested to
be included in such registration and the number of securities which the Company
proposes to sell for its own account is, in the aggregate, less than the number
of securities which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, the number of securities
requested to be included in such registration by all other holders thereof which
number shall be limited to such extent, and, subject to any rights of such other
holders, shall be allocated pro rata among all such holders on the basis of the
relative number of such securities then held by each such holder; provided that
any such amount thereby allocated to any such holder that exceeds such holder's
request shall be reallocated among the remaining requesting holders in like
manner. If any Holder advises the managing underwriter of any underwritten
offering that the Registrable Securities and other securities covered by the
registration statement cannot be sold in such offering within a price range
acceptable to such Holder, then such Holder shall have the right to exclude all
or any portion of its Registrable Securities from registration.
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2.6 Postponements in Requested Registrations.
(a) If, upon receipt of a registration request pursuant to Section
2.1, the Company is advised in writing by a nationally recognized investment
banking firm in the United States selected by the Company that, in such firm's
opinion, a registration by the Company at the time and on the terms requested
would adversely affect any public offering of securities of the Company (other
than in connection with employee benefit and similar plans) (a "Company
Offering") with respect to which the Company has commenced preparations for a
registration prior to the receipt of a registration request pursuant to Section
2.1 and the Company furnishes the Holders with a certificate signed by the Chief
Executive Officer or Chief Financial Officer of the Company to such effect (the
"Transaction Delay Notice") promptly after such request, the Company shall not
be required to effect a registration pursuant to Section 2.1 until the earliest
of (i) 30 days after the completion of such Company Offering, (ii) promptly
after the abandonment of such Company Offering or (iii) 90 days after the date
of the Transaction Delay Notice; provided that in any event the Company shall
not be required to effect any registration prior to the termination, waiver or
reduction of any "blackout period" required by the underwriters to be applicable
to the Holders in connection with any Company Offering; provided further that in
no event shall the Company delay such registration for more than 180 days.
(b) If upon receipt of a registration request pursuant to Section
2.1 or while a registration request pursuant to Section 2.1 is pending, the
Company determines in its good faith judgment after consultation with its
securities counsel that the filing of a registration statement or any amendment
thereto would require disclosure of material information which the Company has a
bona fide business purpose for preserving as confidential and the Company
provides the Holders written notice (the "Information Delay Notice" and,
together with the Transaction Delay Notice, the "Delay Notice") thereof promptly
after the Company makes such determination, which shall be made promptly after
the receipt of any request, the Company shall not be required to comply with its
obligations under Section 2.1 until the earlier of (i) the date upon which such
material information is disclosed to the public or ceases to be material or (ii)
30 days after the Holders' receipt of such notice.
(c) Notwithstanding the foregoing provisions of this Section 2.6,
the Company shall be entitled to serve only one Delay Notice (A) within any
period of 180 consecutive days or (B) with respect to any two consecutive
registrations requested pursuant to Section 2.1.
2.7 Expenses. The Company will pay all Registration Expenses in connection
with the registrations requested pursuant to Section 2.1.
2.8 Selection of Underwriters. The Majority Sellers shall have the right
to select any investment banker and manager or co-managers to administer the
offering, subject to the consent of the Company (which shall not be unreasonably
withheld or delayed). The Company and all participating Holders shall enter into
an underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting, as well as all other documents customary in
similar offerings, including underwriting agreements, custody agreements, powers
of attorney, and indemnification agreements.
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ARTICLE III
INCIDENTAL REGISTRATION
3.1 Right to Include Registrable Securities. If the Company proposes to
register any of its IDSs, Class A Common Stock, Senior Subordinated Notes or
other securities or any security convertible into or exchangeable or exercisable
for any Class A Common Stock, Senior Subordinated Notes, IDSs or other
securities of the Company (other than in connection with an employee stock
option or other benefit plan) under the Securities Act (other than: a
registration on Form X-0, X-0 or any successor or similar forms, whether or not
for sale for its own account (and including any registration pursuant to a
request or demand registration right of any other person), at any time, then the
Company will each such time, subject to the provisions of Section 3.2 hereof,
give prompt written notice to the Holders of its intention to do so and of the
Holders' rights under this Article III, at least 30 days prior to the
anticipated filing date of the registration statement relating to such
registration; provided, in the case of a registration pursuant to Article II,
the Company need not provide such notice to any Holder participating in such
registration but will provide such notice to the Management Holders. Such notice
shall offer the Holders the opportunity to include in such registration
statement such number of Registrable Securities as each Holder may request. Upon
the written request of any Holder made within 15 days after the receipt of the
Company's notice (which request shall specify the number of Registrable
Securities intended to be disposed of by such Holder), the Company shall use its
best efforts to effect the proposed registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
such Holder to the extent requisite to permit the disposition of the Registrable
Securities so to be registered; provided that (i) if such registration involves
an underwritten offering, any such Holder must sell its Registrable Securities
to the underwriters selected by the Company on the same terms and conditions as
apply to the Company (except that indemnification obligations of any such Holder
shall be limited to those obligations set forth in Article VI hereof) and (ii)
if, at any time after giving written notice of its intention to register any
securities pursuant to this Section 3.1 and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company
shall give written notice to each such Holder and, thereupon, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration. If a registration pursuant to this Section 3.1 involves an
underwritten public offering, any such Holder may elect, in writing no less than
one business day prior to the effective date of the registration statement filed
in connection with such registration, not to register such securities in
connection with such registration. No registration effected under this Article
III shall relieve the Company of its obligations to effect registrations upon
request under Article II hereof. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Article III.
3.2 Priority in Incidental Registrations. If a registration pursuant to
this Article III involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
(including IDSs and all Registrable Securities) which the Company, the Holders
and any other persons intend to include in such registration exceeds the largest
number of securities which can be sold without reasonably expecting to have an
adverse effect on such offering, including the price at which such securities
can be sold, the number of such securities to be included in such registration
shall be reduced to such extent, and
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the Company will include in such registration such maximum number of securities
as follows: first, all the securities the Company proposes to sell for its own
account pursuant to Section 3.1 in such registration and second, to the extent
that the number of securities which the Company proposes to sell for its own
account pursuant to Section 3.1 hereof is less than the number of securities
which the Company has been advised can be sold in such offering without having
the adverse effect referred to above, the aggregate of the number of Registrable
Securities requested to be included in such registration by the Holders and the
number of any other such securities requested to be included in such
registration by other holders shall be limited to such extent, and shall be
allocated pro rata among the Holders and all such holders on the basis of the
relative number of such securities then held by each Holder and each such
holder; provided that any such amount thereby allocated to each Holder or any
such other holder that exceeds such Holder's or such holder's request,
respectively, shall be reallocated among the Holders and the remaining
requesting holders in like manner, as applicable.
ARTICLE IV
HOLDBACK AGREEMENTS
4.1 Restrictions on Public Sale by the Company and Others. If any
registration of Registrable Securities shall be made in connection with an
underwritten public offering, the Company agrees not to effect any public sale
or distribution of any IDSs, Class A Common Stock, Class A Common Stock
Equivalents, Senior Subordinated Notes or other securities or of any security
convertible into or exchangeable or exercisable for any IDSs, Class A Common
Stock, Class A Common Stock Equivalents, Senior Subordinated Notes or other
securities of the Company (other than in connection with an employee stock
option or other benefit plan) during the 7 days prior to, and during the 180-day
period beginning on, the closing date of the sale of the Registrable Securities
pursuant to an effective registration statement (except as part of such
registration) and (ii) that any agreement entered into on or after the date of
this Agreement pursuant to which the Company issues or agrees to issue any
privately placed IDSs, Class A Common Stock, Class A Common Stock Equivalents,
Senior Subordinated Notes, Class B Common Stock or other securities shall
contain a provision under which holders of such securities agree not to effect
any public sale or distribution of any such securities during the period
referred to in the foregoing clause, including any sale pursuant to Rule 144
under the Securities Act (except as part of such registration, if permitted).
ARTICLE V
REGISTRATION PROCEDURES
5.1 Registration Procedures. If and whenever the Company is required to
use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Agreement, the Company
will, as expeditiously as possible:
(a) use its best efforts to prepare and file with the SEC within 30
days (or, for registration on a Form S-3 or any similar short-form registration
statement, 15 days), after receipt of a request for registration with respect to
such Registrable Securities, a registration statement or prospectus on any form
for which the Company then qualifies or which counsel for the
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Company shall deem appropriate, and which form shall be available for the sale
of the Registrable Securities in accordance with the intended methods of
distribution thereof, and use its best efforts to cause such registration
statement to become and remain effective as promptly as practicable, subject to
the Majority Holders' right to defer the Company's request for the acceleration
of effectiveness of any such registration statement as may be necessary to
accommodate the anticipated timetable for such offering; provided that before
filing with the SEC a registration statement or any amendments or supplements
thereto, the Company will (i) furnish to the selling Holders copies of the form
of prospectus (including the preliminary prospectus) proposed to be filed and
furnish to counsel for the selling Holders copies of all such documents proposed
to be filed, which documents will be subject to the review of such counsel and
shall not be filed without the approval of such counsel (which approval shall
not be unreasonably withheld) and (ii) notify the selling Holders of any stop
order issued or threatened by the SEC and take all reasonable actions required
to prevent the entry of such stop order or to remove it if entered;
(b) subject to Section 2.4 in the case of a Shelf Registration,
prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus (including each preliminary
prospectus) used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days or such
shorter period which will terminate when all Registrable Securities covered by
such registration statement have been sold (but not before the expiration of the
90-day period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, and comply with the provisions of the Securities Act applicable to
it with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) promptly furnish to each Holder and each underwriter, if any, of
Registrable Securities covered by such registration statement such number of
copies of such registration statement, each amendment and supplement thereto (in
each case including all exhibits thereto), in conformity with the requirements
of the Securities Act, copies of any correspondence with the SEC relating to the
registration statement and such other documents as any Holder or underwriter may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such Holder;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any Holder or each underwriter, if any, reasonably requests and
do any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder and each underwriter, if any, to consummate the
disposition in such jurisdictions of the Registrable Securities; provided that
the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph (d), (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction;
(e) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
Governmental Entities as may be necessary to enable the selling Holders to
consummate the disposition of such Registrable Securities;
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(f) immediately notify the selling Holders at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
of the happening of any event which comes to the Company's attention if as a
result of such event 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 will promptly prepare and furnish to the selling Holders a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will 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;
(g) use its reasonable best efforts to prevent the issuance of and
obtain the withdrawal of any stop order suspending the effectiveness of a
registration statement relating to the Registrable Securities at the earliest
practicable moment;
(h) if requested by the managing underwriter or underwriters or any
Holder, immediately incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters and each applicable
selling Holder agree and reasonably request should be included therein relating
to the plan of distribution with respect to such Registrable Securities,
including information with respect to the number of Registrable Securities being
sold to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or best
efforts underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(i) cooperate with the Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at least three
business days prior to any sale of the Registrable Securities to the
underwriters;
(j) use its best efforts to cause all such Registrable Securities to
be listed on each securities exchange or quotation system on which the same
securities issued by the Company are then listed, and enter into such customary
agreements including a listing application and indemnification agreement in
customary form if the applicable listing requirements are satisfied, and to
provide a transfer agent and registrar for such Registrable Securities covered
by such registration statement no later than the effective date of such
registration statement;
(k) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the Majority
Sellers or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities, including, without
limitation, customary indemnification and customary participation in "road show"
presentations to potential investors;
11
(l) make available for inspection by the Holders, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any Holder or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, if any,
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 to supply all information and respond to all inquiries
reasonably requested by any such Inspector in connection with such registration
statement;
(m) use its best efforts to obtain (i) an opinion of outside counsel
to the Company and (ii) a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by opinions and "cold comfort" letters (provided,
that the term "customarily" as applied to any Registrable Securities shall be
deemed to include, without limitation, letters and opinions delivered to the
Company in connection with the initial public offering of IDSs) as the selling
Holders or the underwriter reasonably requests;
(n) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders,
within the required time periods, an earning statement covering the required
periods, which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder or any successor provisions
thereto;
(o) promptly prior to the filing of any document which is to be
incorporated by reference into the registration statement or the prospectus
(after the initial filing of the registration statement, including each
preliminary prospectus), provide copies of such document to counsel to the
selling Holders and to the managing underwriters, if any, make the Company's
representatives available for discussion of such document and make such changes
in such document prior to the filing thereof as counsel for the selling Holders
may reasonably request;
(p) (p) promptly notify the selling Holders, counsel for the selling
Holders, and the managing underwriter or agent and provide them with copies of
such relevant documents, (i) when the registration statement, or any
post-effective amendment to the registration statement, shall have become
effective, or any supplement to the prospectus or any amendment to the
prospectus shall have been filed, (ii) of the receipt of any comments from the
SEC, (iii) of any request of the SEC to amend the registration statement or
amend or supplement the prospectus or for additional information, and (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of any
prospectus, or of the suspension of the qualification of the registration
statement for offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes; and
(q) cooperate with the selling Holders and each underwriter or agent
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with any
securities exchange and/or the NASD. It shall be a condition precedent to the
obligation of the Company to take any action pursuant to this Agreement in
respect of the securities which are to be registered at the request of any
Holder
12
that such Holder shall furnish to the Company such information regarding the
securities held by such Holder and the intended method of disposition thereof as
the Company shall reasonably request in connection with such registration. Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in clause (f) of Section 5.1 hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the registration statement covering such Registrable Securities until such
Holder receives the copies of the prospectus supplement or amendment
contemplated by clause (f) of Section 5.1 hereof, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
period mentioned in clause (b) of Section 5.1 hereof shall be extended by the
greater of (i) three months or (ii) the number of days during the period from
and including the date of the giving of such notice pursuant to clause (f) of
Section 5.1 hereof to and including the date when such Holder shall have
received the copies of the prospectus supplement or amendment contemplated by
clause (f) of Section 5.1 hereof.
ARTICLE VI
TRANSFEREE EXCHANGE; LEGENDS
6.1 Transferee Exchange. With respect to any shares of Class B Common
Stock held by Xxxx Funds or BRS Investors, upon any sale of the shares of Class
B Common Stock following the second anniversary of the consummation of the
Company's initial public offering, such parties agree with the Company that at
the option of the selling party, upon prior written notice to the Company, the
Company shall exchange with the transferee in such sale one IDS for each share
of Class B Common Stock such that the number of shares of Class B Common Stock
received by the transferee of such shares shall make an integral whole number of
IDSs. For the purposes of this Section 6.1, if the transferee receives such
Class B Common Stock in a distribution in kind from any member of Xxxx Funds or
BRS Investors, the Company agrees that the transferee may, at its option, not
require the Company to exchange the Class B Common Stock for an IDS, but rather,
at such transferee's option, have such exchange occur upon the subsequent sale
to another transferee.
The parties hereto agree that, prior to any sale of shares of Class B
Common Stock in which there will be an exchange for an amount of IDSs pursuant
to this Section 6.1, the following conditions must be met:
(a) such sale and exchange shall comply with applicable laws,
including, without limitation, securities laws, laws relating to the redemption
of common stock and laws relating to the issuance of debt,
(b) such sale and exchange shall occur pursuant to an effective
registration statement in the United States,
(c) such sale and exchange will not conflict with or cause a default
under any material financing agreement,
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(d) such sale and exchange shall not cause a mandatory suspension of
dividends or deferral of interest under any material financing agreement as of
the measurement date immediately following the proposed sale and exchange date,
(e) no event of default or deferral of interest has occurred and is
continuing under the Indenture governing the Senior Subordinated Notes and all
deferred interest, if any, together with interest accrued thereon has been paid
in full; and
(f) the selling party shall have given the Company at least 30 but
not more than 60 days advance notice of its desire to effect such transaction.
6.2 Legends. A copy of this Agreement shall be filed with the secretary of
the Company and kept with the records of the Company. Each certificate
representing shares of Class B Common Stock subject to this Agreement shall bear
the following legend on the face thereof (in addition to any legend required by
state securities or "blue sky" laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE
AND ARE SUBJECT TO AN INVESTOR RIGHTS AGREEMENT. A COPY OF THE INVESTOR RIGHTS
AGREEMENT IS AVAILABLE FOR INSPECTION AT THE COMPANY'S PRINCIPAL OFFICES. NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH
THE PROVISIONS OF THE INVESTOR RIGHTS AGREEMENT AND (A) PURSUANT TO A
REGISTRATION STATEMENT EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR (B) A TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
THAT IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT OF 1933,
AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER AND, IF REQUESTED, THE
COMPANY MAY REQUIRE PROOF OF SUCH EXEMPTION. UPON CERTAIN TRANSFERS OF THE CLASS
B COMMON SHARES REPRESENTED BY THIS CERTIFICATE, THE COMPANY SHALL EXCHANGE WITH
THE TRANSFEREE A CERTAIN AMOUNT OF THE SHARES OF CLASS B COMMON STOCK FOR THE
COMPANY'S CLASS A COMMON STOCK AND SENIOR SUBORDINATED NOTES PURSUANT TO THE
TERMS OF, AND SUBJECT TO THE LIMITATIONS CONTAINED IN, THE INVESTOR RIGHTS
AGREEMENT. THE HOLDER OF THIS CERTIFICATE AGREES TO BE BOUND BY ALL OF THE
PROVISIONS OF SUCH INVESTOR RIGHTS AGREEMENT."
The Company agrees to promptly remove (or cause to be removed) the legend
set forth above and to take such further action to remove any restrictions on
the shares of Class B Common Stock in connection with a transfer that is
pursuant to a registration statement effective under the Securities Act, or
exempt from such registration or filing in the United States.
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ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by the Company. In the event of any registration of
any Registrable Securities of the Holders under the Securities Act pursuant to
Article II or III hereof, the Company will, and it hereby does, indemnify and
hold harmless, to the full extent permitted by law, each selling Holder, their
directors and officers, employees, stockholders, general partners, limited
partners, members, advisory directors and managing directors (and directors,
officers, stockholders, general partners, limited partners, members, advisory
directors, managing directors and controlling persons thereof), each other
person who participates as an underwriter in the offering or sale of such
securities and each other person, if any, who controls, is controlled by or is
under common control with such Holder within the meaning of the Securities Act,
against any and all losses, claims, damages or liabilities, joint or several,
and reasonable expenses (including, without limitation, reasonable attorney's
fees) to which such Holder, any such director, or officer, employee,
stockholder, general or limited partner, member, or advisory or managing
director or any such underwriter or controlling person may become subject under
the Securities Act, state securities or blue sky laws, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) or expenses arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement under which such
Registrable Securities were registered under the Securities Act, any prospectus
(including each preliminary prospectus) contained therein, or any amendment or
supplement thereto or (ii) 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 (in the case of a prospectus (including each preliminary
prospectus), in light of the circumstances under which they are made), and the
Company will reimburse each such Holder and each such director, officer,
employee, general partner, limited partner, advisory director, managing director
or underwriter and controlling person for any legal or any other expenses
reasonably incurred by them as such expenses are incurred in connection with
investigating or defending such loss, claim, liability, action or proceeding;
provided that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
prospectus (including each preliminary prospectus) in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Holder or such director, officer, employee,
general or limited partner, managing director or underwriter specifically
stating that it is for use in the preparation thereof; provided, further, that
the Company shall not be required to indemnify any such person if such untrue
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the final prospectus or any
amendment or supplement thereto and the final prospectus does not contain any
other untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and any such
loss, liability, claim, damage or expense suffered or incurred by such
indemnified person resulted from any action, claim or suit by any person who
purchased Registrable Securities which are the subject thereof from such
indemnified person and it is established in the related proceeding that such
indemnified person failed to deliver or provide a copy of the final
15
prospectus (as amended or supplemented) to such person with or prior to the
confirmation of the sale of such Registrable Securities sold to such person if
required by applicable law, unless such failure to deliver or provide a copy of
the final prospectus (as amended or supplemented) was a result of noncompliance
by the Company with this Agreement or as a result of the failure of the Company
to provide such final prospectus. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of each Holder or
any such director, officer, employee, general partner, limited partner, managing
director, underwriter or controlling person and shall survive the transfer of
such securities by any Holder.
7.2 Indemnification by Holders and Underwriters. The Company may require,
as a condition to including Registrable Securities in any registration statement
filed in accordance with Article II or III hereof, that the Company will have
received an undertaking reasonably satisfactory to it from any selling Holder or
any underwriter to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 6.1) the Company and its directors,
officers, employees, controlling persons and all other prospective sellers and
their respective directors, officers, general and limited partners, managing
directors, and their respective controlling persons, against any and all losses,
claims, damages or liabilities, joint or several, and expenses (including any
amounts paid in any settlement effected with the consent of the applicable
Holder and underwriter) to which the Company and its directors, officers,
employees, controlling persons or any other prospective sellers and their
respective directors, officers, general and limited partners, managing
directors, and their respective controlling persons may become subject under the
Securities Act, state securities or blue sky laws, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) or expenses arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement under which such
Registrable Securities were registered under the Securities Act, any prospectus
(including each preliminary prospectus) contained therein, or any amendment or
supplement thereto or (ii) 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 (in the case of a prospectus (including each preliminary
prospectus), in light of the circumstances under which they are made), and the
applicable Holder and underwriter will reimburse the Company and its directors,
officers, employees, controlling persons and all other prospective sellers and
their respective directors, officers, general and limited partners, managing
directors, and their respective controlling persons for any legal or any other
expenses reasonably incurred by them as such expenses are incurred in connection
with investigating or defending such loss, claim, liability, action or
proceeding; provided that any Holder and any underwriter shall only be liable in
any such case if any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in any
such prospectus (including each preliminary prospectus) in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Holder or any such underwriter specifically
stating that it is for use in the preparation thereof; provided, further, that
such Holder or underwriter shall not be required to indemnify the Company if
such untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the final
prospectus or any amendment or supplement thereto and the final prospectus does
not contain any other untrue statement or omission or alleged untrue statement
or omission of a
16
material fact that was the subject matter of the related proceeding and is
covered by such Holder's or underwriter's obligation under this Section 6.2 and
any such loss, liability, claim, damage or expense suffered or incurred by the
Company resulted from any action, claim or suit by any person who purchased
Registrable Securities or other securities of the Company which are the subject
thereof from the Holder or the Company or another holder and it is established
in the related proceeding that a copy of the final prospectus (as amended or
supplemented) was delivered or provided to such person with or prior to the
confirmation of the sale of such Registrable Securities sold to such Person if
required by applicable law. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer, employee or controlling person or other indemnified person.
No Holder shall be liable under any indemnity provided pursuant to this Article
VI for any amounts exceeding the product of the purchase price per Registrable
Security and the number of Registrable Securities being sold pursuant to such
registration statement or prospectus by such Holder.
7.3 Notices of Claims, Etc. Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Article VI, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party, promptly give written notice to the latter
of the commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding Sections of this
Article VI, except to the extent that the indemnifying party is actually
materially prejudiced by such failure to give notice. If any such claim or
action is brought against an indemnified party, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, to the extent that it
may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof or a court of competent jurisdiction
determines that the indemnifying party is not vigorously defending such action
or proceeding. An indemnifying party will not be subject to any liability for
any settlement made without its consent (which consent shall not be unreasonably
withheld). No indemnifying party will consent to entry of any judgment or enter
into any settlement of any pending or threatened proceeding which (i) does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to all indemnified parties of a release from all liability in respect to such
claim or litigation, (ii) involves the imposition of equitable remedies or the
imposition of any non-financial obligations on such indemnified party or (iii)
otherwise adversely affects such indemnified party, other than as a result of
the imposition of financial obligations for which such indemnified party will be
indemnified hereunder. Notwithstanding anything to the contrary contained
herein, an indemnifying party will not be obligated to pay the fees and expenses
of more than one counsel (together with local counsel) for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
17
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels (together
with the fees of local counsel).
7.4 Contribution. If the indemnification provided for in this Article VI
is unavailable to an indemnified party under Section 6.1 or Section 6.2 hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other, and the relative fault of the indemnifying party on the one hand and
of the indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party, on the one hand, and of the indemnified party,
on the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 6.1 or Section 6.2, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 6.4 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.
Notwithstanding the provisions of this Section 6.4, no Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities sold by such Holder to any purchaser exceeds
the amount of any damages which such Holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
7.5 Other Indemnification. Indemnification and contribution similar to
that specified in Section 6.1 and Section 6.2 (with appropriate modifications)
shall be given by the Company and each Holder with respect to any required
registration or other qualification of securities under any federal, state or
blue sky law or regulation of any Governmental Entity other than as required by
the Securities Act.
7.6 Non-Exclusivity. The obligations of the parties under this Article VI
shall be in addition to any indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any
18
investigation made by or on behalf of any indemnified party and shall survive
the transfer of any of the Registrable Securities by any such party.
7.7 Indemnification Payments. The indemnification and contribution
required by Sections 6.1, 6.2 and 6.4 shall be made by periodic payments of the
amount thereof during the course of the investigation or defense, as and when
bills are received or expense, loss, damage or liability is incurred.
ARTICLE VIII
MISCELLANEOUS
8.1 Remedies. The Company and each Holder acknowledge and agree that in
the event of any breach of this Agreement by any of them, the Holders and the
Company would be irreparably harmed and could not be made whole by monetary
damages. Each party accordingly agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate and that the
parties, in addition to any other remedy to which they may be entitled at law or
in equity, shall be entitled to compel specific performance of this Agreement.
8.2 7.2 Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto in respect of the subject matter
contained herein, and there are no restrictions, promises, representations,
warranties, covenants, or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to herein and in the
Stockholders Agreement. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
8.3 Notices. Any notice, request, instruction or other document to be
given hereunder by any party hereto to another party hereto shall be in writing,
shall be delivered personally or sent by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other delivery
service, to the Company at the address set forth below and to any other
recipient and to any subsequent holder of Registrable Securities subject to this
Agreement at such address as indicated by the Company's records or to such other
address as the party to whom notice is to be given may provide in a written
notice to the Company, a copy of which written notice shall be maintained on
file with the Secretary of the Company.
(a) To the Company:
Alliance Laundry Holdings Inc.
X.X. Xxx 000
Xxxxx, Xxxxxxxxx 00000-0000
Attn: General Counsel
Any notice, request, instruction or document shall be deemed to have been
received on the date of delivery thereof.
8.4 Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of
19
law to the extent that the application of the laws of another jurisdiction would
be required thereby.
8.5 Jurisdiction. The courts of the State of New York in New York County
and the United States District Court for the Southern District of New York shall
have jurisdiction over the parties with respect to any dispute or controversy
between them arising under or in connection with this agreement and, by
execution and delivery of this agreement, each of the parties to this Agreement
submits to the exclusive jurisdiction of those courts, including but not limited
to the in personam and subject matter jurisdiction of those courts, waives any
objections to such jurisdiction on the grounds of venue or forum non conveniens,
the absence of in personam or subject matter jurisdiction and any similar
grounds, consents to service of process by mail (in accordance with Section 7.2)
or any other manner permitted by law, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement.
8.6 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT.
8.7 Severability. The invalidity, illegality or unenforceability of one or
more of the provisions of this Agreement in any jurisdiction shall not affect
the validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
8.8 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.
8.9 Successors; Assigns; Transferees. The provisions of this Agreement
shall be binding upon and accrue to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and permitted assigns. In
addition, and whether or not any express assignment shall have been made, the
provisions of this Agreement which are for the benefit of the Holders shall also
be for the benefit of and enforceable by any Transferee or subsequent holder of
Registrable Securities, subject to the provisions contained herein; provided
that the Company is given written notice at the time or within 90 days of said
transfer, stating the name and address of the Transferee and identifying the
securities with respect to which such registration rights are being transferred;
and provided, further, that the Transferee or assignee of such rights assumes in
writing the obligations of such Holder under this Agreement (in which case such
Holder shall be released from such obligations). Each Holder shall have the
exclusive option to determine which rights and obligations shall be assigned to
any Transferee.
8.10 Information to be Furnished by the Holders. Each Holder shall furnish
to the Company such information as the Company may reasonably request and as
shall be required in connection with the registration and related proceedings
referred to herein.
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8.11 Amendments, Waivers. This Agreement may not be amended, modified or
supplemented and no waivers of or consents to departures from the provisions
hereof may be given unless consented to in writing by the Company and the
Majority Holders; provided, however, that any amendment, modification,
supplement or waiver of or to this Agreement that treats any Holder differently
than any other Holder shall require the consent of the Majority Holders of each
group of similarly treated Holders.
8.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
8.13 Limited Liability. Notwithstanding any other provision of this
Agreement neither the stockholders, members, general partners, limited partners,
advisory directors or managing directors, or any directors or officers of any
stockholders, members, general partners, limited partners, advisory directors or
managing directors, nor any future stockholders, members, general partners,
limited partners, advisory directors or managing directors, if any, of any
Holder shall have any personal liability for performance of any obligation of
such Holder under this Agreement.
8.14 Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to the Registrable
Securities which would (i) adversely affect the ability of any Holder to include
such Registrable Securities in a registration undertaken pursuant to this
Agreement or (ii) adversely affect the marketability of such Registrable
Securities in any such registration.
8.15 Rule 144. If the Company is subject to the requirements of Section
13, 14 or 15(d) of the Exchange Act, the Company covenants that it will file
with the SEC in a timely manner any reports required to be filed by it under the
Securities Act and the Exchange Act (or, if the Company is not required to file
such reports, it will, upon the request of any Holder, make publicly available
such information) and it will take such further action as any Holder may
reasonably request, so as to enable such 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 (ii) any similar rule or regulation hereafter
adopted by the SEC. Upon the request of any Holder, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
8.16 Other Registration Rights. The Company covenants that it will not
grant any right of registration under the Securities Act relating to any of its
IDSs, shares of Class A Common Stock, Class A Common Stock Equivalents, Senior
Subordinated Notes, Class B Common Stock or other securities to any person
unless the Holders shall be entitled to have included in any registration
effected (i) pursuant to Article II hereof, all Registrable Securities requested
by it to be so included prior to the inclusion of any securities requested to be
registered by the persons entitled to any such other registration rights
pursuant to any provision providing incidental registration rights comparable to
those contained in Article III hereof and (ii) pursuant to Article III hereof,
pro rata with the inclusion of any securities requested to be registered by the
persons entitled to any such other registration rights pursuant to any provision
providing incidental registration rights comparable to those contained in
Article III hereof.
21
(a) If the Company at any time grants to any other holders of IDSs,
Class A Common Stock, Class A Common Stock Equivalents, Senior Subordinated
Notes, Class B Common Stock or other securities of the Company any rights to
request the Company to effect the registration (whether requested or incidental)
under the Securities Act of any such securities on any terms more favorable to
such holders than the terms set forth in this Agreement, the terms of this
Agreement shall, at the request of the Majority Holders, be deemed amended or
supplemented to the extent necessary to provide the Holders such more favorable
rights and benefits.
(b) The Company covenants that it will not enter into, or cause or
permit any of its subsidiaries to enter into, any agreement which conflicts with
or limits or prohibits the exercise of the rights granted to the Holders in this
Agreement.
(c) The Company covenants that it will not grant any right of
registration under the Securities Act relating to any of its IDSs, shares of
Class A Common Stock, Class A Common Stock Equivalents, Senior Subordinated
Notes, Class B Common Stock or other securities to any Person pursuant to any
provision providing registration rights comparable to those contained in Article
II hereof without providing that the exercise of such rights will only be
permitted following the consummation of an underwritten public offering by the
Majority Holders.
8.17 Limitation on Separate Registration of Common Stock. Notwithstanding
anything in this Agreement to the contrary, nothing herein shall require the
Company to separately register the Class A Common Stock (not in the form of
IDSs) at any time that the Class A Common Stock is not then actively traded on
the American Stock Exchange or any other national securities exchange or
automated securities quotation system.
8.18 Headings. The headings and captions contained herein are for
convenience of reference only and shall not control or affect the meaning or
construction of any provision hereof.
22
This Agreement has been duly executed and delivered by the
individuals whose names appear below and by the duly authorized representatives
of each party hereto as of the date first above written.
ALLIANCE LAUNDRY HOLDINGS, INC.
By:
---------------------------------
Name:
Title:
[BAIN FUNDS]
By:
---------------------------------
Name:
Title:
[BRS INVESTORS]
By:
---------------------------------
Name:
Title:
[MANAGEMENT INVESTORS]
By:
---------------------------------
Name:
Title:
23
Exhibit 1
Xxxx Capital Fund V, L.P.
BCIP Trust Associates II-B
BCIP Associates II
BCIP Associates II-B
24
Exhibit 2
BCB Family Partners, L.P.
NAZ Family Partners, L.P.
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
H. Xxxxxx Xxxxxxxx
Xxxxx X. Xxxxx
Xxxx Xxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxxxxx C. Xxxxxxx
Xxxxxxx Place
Xxxxxxxxx XxXxxxx
MLPF&S Custodian FBO Xxxx Xxxxxxxx
25
Exhibit 3
26
