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Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of August
29, 2003, is among (a) CHIEF MANUFACTURING HOLDING CORP., a Delaware corporation
(the "Company"), (b) XXXXXXXX, XXXXXXXXX & XXXX CAPITAL PARTNERS, L.P., a
Delaware limited partnership ("FFL"), (c) FFL EXECUTIVE PARTNERS, L.P., a
Delaware limited partnership ("FFL-EP" and, collectively with FFL, the "FFL
Investors"), (d) the Persons listed on Schedule 1 hereto (collectively, the
"Other Investors"), and (e) any other Person who becomes a party to this
Agreement by executing an Instrument of Accession ("Instrument of Accession") in
the form attached hereto as Schedule 2. The FFL Investors, the Other Investors,
and each other Person who becomes a party hereto as aforesaid are referred to
collectively herein as the "Holders" and each individually as a "Holder".
This Agreement is made in connection with the Stock Purchase Agreement, the
Subscription Agreements and the Stockholder Agreement. In order (i) to induce
each Holder that is a party to the Stock Purchase Agreement and the Stockholder
Agreement to enter into such agreements and (ii) to induce each Holder that is a
party to a Subscription Agreement and the Stockholder Agreement to enter into
such agreements, the Company has agreed to provide the registration rights set
forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. As used herein, the following terms have the following
meanings:
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with, such Person.
"Agreement" has the meaning specified in the Preamble hereto.
"Class A Common Stock" means the Company's Class A Voting Common Stock,
$0.001 par value per share.
"Class B Common Stock" means the Company's Class B Non-Voting Common
Stock, $0.001 par value per share.
"Class C Common Stock" means the Company's Class C Voting Common Stock,
$0.001 par value per share.
"Commission" means the Securities and Exchange Commission.
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"Xxxxxx Xxxxx" means (a) the Class A Common Stock, (b) the Class B Common
Stock, (c) Class C Common Stock and (d) any shares of any other class of capital
stock of the Company hereafter issued which are either (i) not preferred as to
dividends or assets over any class of stock of the Company, (ii) not subject to
redemption pursuant to the terms thereof, or (iii) issued to the holders of
shares of Common Stock upon any reclassification thereof.
"Company" has the meaning specified in the Preamble hereto.
"Demand Registration" has the meaning specified in Section 2(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FFL" has the meaning specified in the Preamble hereto.
"FFL-EP" has the meaning specified in the Preamble hereto.
"FFL Investors" has the meaning specified in the Preamble hereto.
"FFL Registrable Securities" means, at any time, all of the then issued and
outstanding (a) shares of Common Stock issued to the FFL Investors pursuant to
the Subscription Agreements, (b) shares of Common Stock issued or issuable to
the FFL Investors upon conversion of any shares of Preferred Stock issued to the
FFL Investors pursuant to the Subscription Agreements, (c) shares of Common
Stock issued or issuable upon exercise of the Investor Warrants issued to the
FFL Investors pursuant to the Subscription Agreements, (d) shares of Common
Stock purchased by or issued from time to time to the FFL Investors, (e) shares
of any class of Common Stock into which such shares of Common Stock have been
converted and (f) shares of Common Stock issued with respect to such shares by
way of stock dividend or stock split or in connection with any merger,
consolidation, recapitalization or other reorganization affecting the Common
Stock. FFL Registrable Securities will continue to be FFL Registrable Securities
in the hands of any Holder and each Holder thereof will succeed to the rights
and obligations of a Holder of FFL Registrable Securities hereunder, provided
that shares of FFL Registrable Securities will cease to be FFL Registrable
Securities when transferred (i) to the Company, (ii) to a holder of Other
Registrable Securities, or (iii) pursuant to a Public Sale.
"FFL Stockholders" means each of the FFL Investors, for so long as such FFL
Investor holds FFL Registrable Securities and any other Person to whom FFL
Registrable Securities are assigned or transferred in accordance with the
Stockholder Agreement and Section 12(g) of this Agreement for so long as such
Person holds any FFL Registrable Securities.
"Holder" means one of the Holders identified in the introductory paragraph
to this Agreement or such other Person to whom such Holder shall have assigned
or transferred such Holder's Registrable Securities in accordance with the
Stockholder Agreement and Section 12(g) of this Agreement.
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"Indemnified Party" has the meaning specified in Section 8(c) hereof.
"Indemnifying Party" has the meaning specified in Section 8(c) hereof.
"Instrument of Accession" has the meaning specified in the Preamble hereto.
Investor Warrants. Investor Warrants shall mean, collectively, each of the
warrants to purchase Common Stock issued by the Company pursuant to the
Subscription Agreements and the Stock Purchase Agreement.
"Material Transaction" means any material transaction in which the Company
or any of its Subsidiaries proposes to engage or is engaged, including a
purchase or sale of assets or securities, financing, merger, consolidation or
any other transaction that would require disclosure pursuant to the Exchange
Act, and with respect to which the Company's board of directors has reasonably
determined that compliance with this Agreement may be expected to either
materially interfere with the Company's ability to consummate such transaction
or require the Company to disclose material, non-public information prior to
such time as it would otherwise be required to be disclosed.
"NASDAQ" has the meaning specified in Section 5(a)(vi).
"Other Investors" has the meaning specified in the Preamble hereto.
"Other Registrable Securities" means, at any time, all of the then issued
and outstanding (a) shares of Common Stock purchased by or issued from time to
time to any Other Investor or Holder other than any FFL Stockholder (including,
without limitation, shares of Common Stock issued or issuable upon conversion or
exercise of the Preferred Stock or Investor Warrants issued to the Other
Investors pursuant to the Stock Purchase Agreement and the Subscription
Agreements), (b) shares of Common Stock into which such shares of Common Stock
have been converted and (c) shares of Common Stock issued with respect to such
shares by way of stock dividend or stock split or in connection with any merger,
consolidation, recapitalization or other reorganization affecting the Common
Stock. Other Registrable Securities will continue to be Other Registrable
Securities in the hands of any Holder and each Holder thereof will succeed to
the rights and obligations of a Holder of Other Registrable Securities
hereunder, provided that shares of Other Registrable Securities will cease to be
Other Registrable Securities when transferred (i) to the Company, (ii) to a
holder of FFL Registrable Securities, or (iii) pursuant to a Public Sale.
"Other Stockholders" means any Person for so long as such Person holds
Other Registrable Securities and any other Person to whom Other Registrable
Securities are assigned or transferred in accordance with the Stockholder
Agreement and Section 12(g) of this Agreement for so long as such Person holds
any Other Registrable Securities.
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"Person" means any individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Piggyback Registration" has the meaning specified in Section 3(a) hereof.
"Preferred Stock" means (a) the Company's Series A Participating Preferred
Stock, $0,001 par value per share and (b) any capital stock or other securities
into which or for which any such shares of Preferred Stock shall have been
converted or exchanged pursuant to any recapitalization, reorganization or
merger of the Company.
"Prospectus" means the prospectus included in any Registration Statement,
as amended or supplemented by any Prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference in such Prospectus.
"Public Sale" means any sale of Common Stock to the public pursuant to a
public offering registered under the Securities Act, or to the public through a
broker or market-maker pursuant to the provisions of Rule 144 (or any successor
rule) adopted under the Securities Act.
"registered" and "registration" means a registration effected by preparing
and filing a Registration Statement in compliance with the Securities Act and
the declaration or ordering by the Commission of effectiveness of such
Registration Statement.
"Registrable Securities" means all FFL Registrable Securities and all Other
Registrable Securities.
"Registration Expenses" has the meaning specified in Section 7 hereof.
"Registration Statement" means any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholder Agreement" means Stockholder, dated as of August 29, 2003,
among the Company and the stockholders of the Company, as amended and in effect
from time to time.
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"Stockholders" means, collectively, the FFL Stockholders and the Other
Stockholders.
"Stock Purchase Agreement" means the Stock Purchase and Exchange Agreement,
dated as of August 29, 2003, among the Company, Chief Manufacturing Acquisition
Corp., Chief Manufacturing, Inc. ("CMI"), the stockholders of CMI and the Seller
Representative named therein, as amended and in effect from time to time.
"Subscription Agreements" means, collectively, (a) the Subscription
Agreement, dated as of August 29, 2003, between FFL and the Company and (b) the
Subscription Agreement, dated as of August 29, 2003, between FFL-EP and the
Company.
"Underwriters' Maximum Number" means, for any Piggyback Registration,
Demand Registration or other registration which is an underwritten registration,
that number of securities to which such registration should, in the opinion of
the managing underwriters of such registration in the light of marketing
factors, be limited.
2. Demand Registration.
(a) Request for Demand Registration.
(i) Subject to the limitations contained in the following paragraphs
of this Section 2, any Stockholders who collectively hold 20% or more of
all Registrable Securities may at any time and from time to time pursuant
to this subparagraph (i), make a written request for the registration by
the Company under the Securities Act of all or any part of the Registrable
Securities of such Holders (such registration being herein called a "Demand
Registration"). Within ten (10) days after the receipt by the Company of
any such written request, the Company will give written notice of such
registration request to all Holders of Registrable Securities.
(ii) Subject to the limitations contained in the following paragraphs
of this Section 2, after the receipt of such written request for a Demand
Registration, (A) the Company will be obligated and required to include in
such Demand Registration all Registrable Securities with respect to which
the Company shall receive from Holders of Registrable Securities, within
thirty (30) days after the date on which the Company shall have given to
all Holders a written notice of registration request pursuant to Section
2(a)(i) hereof, the written requests of such Holders for inclusion in such
Demand Registration, and (B) the Company will use its best efforts in good
faith to effect promptly the registration of all such Registrable
Securities. All written requests made by Holders of Registrable Securities
pursuant to this subparagraph (ii) will specify the number of shares of
Registrable Securities to be registered and will also specify the intended
method of disposition thereof.
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(b) Limitations on Demand Registration.
(i) The Holders of Registrable Securities will not be entitled to
require the Company to effect (A) more than one (1) Demand Registration on
Form S-1 (or other comparable form adopted by the Commission) during any
twelve-month period, (B) any Demand Registration on Form S-1 (or other
comparable form adopted by the Commission) unless Form S-3 (or any
comparable form adopted by the Commission) is not available for such Demand
Registration, (C) any Demand Registration on Form S-1 (or other comparable
form adopted by the Commission) if the investment banker(s) or managing
underwriters) appointed to administer such offering pursuant to Section
2(d) below are unable or unwilling to certify in writing to the Company,
within forty-five (45) days of any written request referred to in Section
2(a)(i), that the gross proceeds from the sale of the Registrable
Securities proposed to be registered pursuant to such Demand Registration
will be reasonably likely to exceed $10,000,000, or (D) any Demand
Registration prior to the date that is six months after the closing of the
Company's initial public offering of its Common Stock.
(ii) Any registration initiated by Holders of Registrable Securities
as a Demand Registration pursuant to Section 2(a) hereof shall not count as
a Demand Registration for purposes of Section 2(b)(i) hereof (A) unless and
until such registration shall have become effective and at least eighty
percent (80%) of all Registrable Securities requested to be included in
such registration shall have been actually sold or (B) if such Holders
withdraw their request for a Demand Registration at any time because (1)
such Holders reasonably believed that the Registration Statement or
Prospectus contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements made therein (in the case of the Prospectus, in the light of
the circumstances under which they were made) not misleading, (2) such
Holders notified the Company of such fact and requested that the Company
correct such alleged misstatement or omission and (3) the Company has
refused to correct such alleged misstatement or omission.
(iii) The Company shall not be obligated or required to effect the
Demand Registration of any Registrable Securities pursuant to Section 2(a)
hereof during the period commencing on the date falling thirty (30) days
prior to the Company's estimated date of filing of, and ending on the date
180 days following the effective date of, any Registration Statement
pertaining to any underwritten registration initiated by the Company, for
the account of the Company, if the written request of Holders for such
Demand Registration pursuant to Section 2(a)(i) hereof shall have been
received by the Company after the Company shall have given to all Holders
of Registrable Securities a written notice stating that the Company is
commencing an underwritten registration initiated by the Company; provided,
however, that the Company
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will use its best efforts in good faith to cause any such Registration
Statement to be filed and to become effective as expeditiously as shall be
reasonably possible. All Holders agree to maintain the confidentiality of
any notice stating the Company is commencing an underwritten registration
except that Holders may disclose such information on a confidential basis
to their legal counsel and other advisors to the extent necessary to
exercise their rights under this Agreement.
(iv) Anything contained herein to the contrary notwithstanding, the
Company may delay the filing or effectiveness of any Registration Statement
under this Section 2 for a period of up to 90 days after the date of a
request for registration pursuant to this Section 2 if a Material
Transaction exists at the time of such request.
(c) Priority on Demand Registrations. If the managing underwriters in any
underwritten Demand Registration shall give written advice to the Company and
the Holders of Registrable Securities to be included in such registration of an
Underwriters' Maximum Number, then: (i) the Company will be obligated and
required to include in such registration that number of Registrable Securities
requested by the Holders thereof to be included in such registration which does
not exceed the Underwriters' Maximum Number, and such number of Registrable
Securities shall be allocated pro rata among the Holders of such Registrable
Securities on the basis of the number of Registrable Securities requested to be
included therein by each such Holder; (ii) if the Underwriters' Maximum Number
exceeds the number of Registrable Securities requested by the Holders thereof to
be included in such registration, then the Company will be entitled to include
in such registration that number of securities which shall have been requested
by the Company to be included in such registration for the account of the
Company and which shall not be greater than such excess; and (iii) if the
Underwriters' Maximum Number exceeds the sum of the number of Registrable
Securities which the Company shall be required to include in such Demand
Registration and the number of securities which the Company proposes to offer
and sell for its own account in such registration, then the Company may include
in such registration that number of other securities which Persons (other than
the Holders of Registrable Securities as such) shall have requested be included
in such registration and which shall not be greater than such excess. Neither
the Company nor any of its stockholders (other than Holders of Registrable
Securities) shall be entitled to include any securities in any underwritten
Demand Registration unless the Company or such stockholders (as the case may be)
shall have agreed in writing to sell such securities on the same terms and
conditions as shall apply to the Registrable Securities to be included in such
Demand Registration.
(d) Selection of Underwriters. The Holders of a majority of the Registrable
Securities to be included in any Demand Registration shall determine whether or
not such Demand Registration shall be underwritten and shall select the
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investment banker(s) and managing underwriter(s) to administer such offering,
subject to the approval of the Company, not to be unreasonably withheld.
3. Piggyback Registrations.
(a) Rights to Piggyback.
(i) If (and on each occasion that) the Company proposes to register
any of its securities under the Securities Act either for the Company's own
account or for the account of any of its stockholders (other than for
Holders pursuant to Section 2 hereof entitled to participate in a
registration) (each such registration not withdrawn or abandoned prior to
the effective date thereof being herein called a "Piggyback Registration"),
the Company will give written notice to all Holders of Registrable
Securities of such proposal not later than the earlier to occur of (A) the
tenth day following the receipt by the Company of notice of exercise of any
registration rights by any Persons, and (B) the thirtieth day prior to the
anticipated filing date of such Piggyback Registration.
(ii) Subject to the provisions contained in paragraph (b) of this
Section 3 and in the last sentence of this subparagraph (ii), (A) the
Company will be obligated and required to include in each Piggyback
Registration all Registrable Securities with respect to which the Company
shall receive from Holders of Registrable Securities, within fifteen (15)
days after the date on which the Company shall have given written notice of
such Piggyback Registration to all Holders of Registrable Securities
pursuant to Section 3(a)(i) hereof, the written requests of such Holders
for inclusion in such Piggyback Registration, and (B) the Company will use
its best efforts in good faith to effect promptly the registration of all
such Registrable Securities. The Holders of Registrable Securities shall be
permitted to withdraw all or any part of the Registrable Securities of such
Holders from any Piggyback Registration at any time prior to the effective
date of such Piggyback Registration unless such Holders of Registrable
Securities shall have entered into a written agreement with the Company's
underwriters establishing the terms and conditions under which such Holders
would be obligated to sell such securities in such Piggyback Registration.
The Company will not be obligated or required to include any Registrable
Securities in any registration effected solely to implement an employee
benefit plan or a transaction to which Rule 145 of the Commission is
applicable.
(b) Priority on Piggyback Registrations. If a Piggyback Registration is an
underwritten registration, and the managing underwriters shall give written
advice to the Company of an Underwriters' Maximum Number, then: (i) the Company
shall be entitled to include in such registration that number of securities
which the Company proposes to offer and sell for its own account in such
registration and which does not exceed the Underwriters' Maximum Number; (ii) if
the Underwriters' Maximum
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Number exceeds the number of securities which the Company proposes to offer and
sell for its own account in such registration, then the Company will be
obligated and required to include in such registration that number of
Registrable Securities requested by the Holders thereof to be included in such
registration and which does not exceed such excess and such Registrable
Securities shall be allocated pro rata among the Holders thereof on the basis of
the number of Registrable Securities requested to be included therein by each
such Holder; and (iii) if the Underwriters' Maximum Number exceeds the sum of
the number of Registrable Securities which the Company shall be required to
include in such registration pursuant to clause (ii) and the number of
securities which the Company proposes to offer and sell for its own account in
such registration, then the Company may include in such registration that number
of other securities which Persons shall have requested be included in such
registration and which shall not be greater than such excess.
(c) Selection of Underwriters. In any Piggyback Registration, the Company
shall (unless the Company shall otherwise agree) have the right to select the
investment bankers and managing underwriters in such registration.
4. Lockup Agreements.
(a) Restrictions on Public Sale by Holders of Registrable Securities. Each
Holder of Registrable Securities, if the Company or the managing underwriters so
request in connection with any underwritten registration of the Company's
securities, will not, without the prior written consent of the Company or such
underwriters, effect any public sale or other distribution of any equity
securities of the Company, including any sale pursuant to Rule 144, during the
seven (7) days prior to, and during the one hundred eighty (180) day period
commencing on, the effective date of such underwritten registration, except in
connection with such underwritten registration.
(b) Restrictions on Public Sale by the Company. The Company agrees not to
effect any public sale or other distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such equity
securities, during the period commencing on the seventh day prior to, and ending
on the one hundred eightieth (180th) day following, the effective date of any
underwritten Demand or Piggyback Registration, except in connection with any
such underwritten registration and except for any offering pursuant to an
employee benefit plan and registered on Form S-8 (or any successor form).
5. Registration Procedures.
(a) Whenever the Holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
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(i) prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause
such Registration Statement to become effective (provided, that before
filing a Registration Statement or Prospectus or any amendments or
supplements thereto, the Company will furnish to counsel selected by the
holders of Registrable Securities covered by such Registration Statement,
copies of all such documents proposed to be filed, which documents will be
subject to the timely review of such counsel and the Company will not file
any Registration Statement or amendment thereto or any Prospectus or any
supplement thereto, including documents incorporated by reference, to which
the Holders of a majority of the Registrable Securities covered by such
Registration Statement shall reasonably object);
(ii) 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 not more than six (6) months, and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such effective
period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement and cause the
Prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act;
(iii) upon request, furnish to each seller of Registrable Securities
such number of copies of such Registration Statement, each amendment and
supplement thereto, the Prospectus included in such Registration Statement
(including each preliminary Prospectus and each Prospectus filed under Rule
424 of the Securities Act) and such other documents as each such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by each such seller (it being understood that
the Company consents to the use of the Prospectus and any amendment or
supplement thereto by such seller in connection with the offering and sale
of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto);
(iv) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests, use its best efforts to
keep each such registration or qualification effective, including through
new filings, amendments or renewals, during the period such Registration
Statement is required to be kept effective, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided that the Company will
not be required (A) to qualify generally to do business in any jurisdiction
where it would not otherwise be
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required to qualify but for this subparagraph (a)(iv), (B) to subject
itself to taxation in any such jurisdiction or (C) to consent to general
service of process in any such jurisdiction;
(v) notify each seller of such Registrable Securities, at any time
when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
Prospectus 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, at the request of any such seller,
the Company will promptly prepare (and, when completed, give notice to each
seller of Registrable Securities) 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 fact necessary to make
the statements therein not misleading; provided that upon such notification
by the Company, each seller of such Registrable Securities will not offer
or sell such Registrable Securities until the Company has notified such
seller that it has prepared a supplement or amendment to such Prospectus
and delivered copies of such supplement or amendment to such seller;
(vi) cause all such Registrable Securities to be listed, prior to the
date of the first sale of such Registrable Securities pursuant to such
registration, on each securities exchange on which similar securities
issued by the Company are then listed and, if not so listed, to be listed
with the National Association of Securities Dealers automated quotation
system ("NASDAQ");
(vii) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such Registration
Statement;
(viii) enter into all such customary agreements (including
underwriting agreements in customary form) and take all such other actions
as the holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (including,
without limitation, effecting a stock split or a combination of shares);
(ix) make available for inspection on a confidential basis by any
seller, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by any such seller or underwriter (in each case after reasonable
prior notice), all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply on a
confidential basis all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such
Registration Statement;
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(x) permit any holder of Registrable Securities which holder, in the
reasonable judgment of the Company, might be deemed to be an underwriter or
a controlling person of the Company within the meaning of Section 15 of the
Securities Act, to participate in the preparation of such registration or
comparable statement and to permit the insertion therein of material,
furnished to the Company in writing, which in the reasonable judgment of
such holder and its counsel should be included, provided that such material
shall be furnished under such circumstances as shall cause it to be subject
to the indemnification provisions provided pursuant to Section 8(b) hereof;
(xi) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related Prospectus or suspending the
qualification of any Registrable Securities included in such Registration
Statement for sale in any jurisdiction, the Company will use its best
efforts promptly to obtain the withdrawal of such order;
(xii) if requested by the managing underwriter or underwriters or any
holder of Registrable Securities in connection with any sale pursuant to a
Registration Statement, promptly incorporate in a Prospectus supplement or
post-effective amendment such information relating to such underwriting as
the managing underwriter or underwriters or such holder reasonably requests
to be included therein, and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such Prospectus supplement or
post-effective amendment;
(xiii) cooperate with the holders of Registrable Securities and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing Registrable Securities to be sold under such
registration, and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or such holders may request;
(xiv) use its best efforts to cause the Registrable Securities to be
registered with or approved by such other governmental agencies or
authorities within the United States and having jurisdiction over the
Company as may reasonably be necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Securities;
(xv) use its best efforts to obtain:
(A) at the time of effectiveness of each registration, a "comfort
letter" from the Company's independent certified public
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accountants covering such matters of the type customarily covered by
"cold comfort letters" as the Holders of a majority of the Registrable
Securities covered by such registration and the underwriters
reasonably request; and
(B) at the time of any underwritten sale pursuant to a
Registration Statement, a "bring-down comfort letter", dated as of the
date of such sale, from the Company's independent certified public
accountants covering such matters of the type customarily covered by
comfort letters as the Holders of a majority of the Registrable
Securities covered by such Registration Statement and the underwriters
reasonably request;
(xvi) use its best efforts to obtain, at the time of effectiveness of
each Piggyback Registration and at the time of any sale pursuant to each
registration, an opinion or opinions, favorable in form and scope to the
Holders of a majority of the Registrable Securities covered by such
registration, from counsel to the Company in customary form; and
(xvii) otherwise comply with all applicable rules and regulations of
the Commission, and make generally available to its security holders (as
contemplated by Section 11(a) under the Securities Act) an earnings
statement satisfying the provisions of Rule 158 under the Securities Act no
later than ninety (90) days after the end of the twelve month period
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement, which
statement shall cover said twelve month period.
6. Cooperation by Prospective Sellers, Etc.
(a) Each prospective seller of Registrable Securities will furnish to the
Company in writing such information as the Company may reasonably require from
such seller, and otherwise reasonably cooperate with the Company in connection
with any Registration Statement with respect to such Registrable Securities.
(b) The failure of any prospective seller of Registrable Securities to
furnish any information or documents in accordance with any provision contained
in this Agreement shall not affect the obligations of the Company under this
Agreement to any remaining sellers who furnish such information and documents
unless in the reasonable opinion of counsel to the Company or the underwriters,
such failure impairs or may impair the viability of the offering or the legality
of the Registration Statement or the underlying offering.
(c) The Holders of Registrable Securities included in any Registration
Statement will not (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Page 14 of 37
-14-
Company to correct or update such Registration Statement or Prospectus; but the
obligations of the Company with respect to maintaining any Registration
Statement current and effective shall be extended by a period of days equal to
the period such suspension is in effect.
(d) At the end of any period during which the Company is obligated to keep
any Registration Statement current and effective as provided by Section 5 hereof
(and any extensions thereof required by the preceding paragraph (c) of this
Section 6), the Holders of Registrable Securities included in such Registration
Statement shall discontinue sales of shares pursuant to such Registration
Statement upon receipt of notice from the Company of its intention to remove
from registration the shares covered by such Registration Statement which remain
unsold, and such Holders shall notify the Company of the number of shares
registered which remain unsold promptly after receipt of such notice from the
Company.
(e) Notwithstanding any other provision herein to the contrary, no Holder
of Registrable Securities which constitute warrants or options shall be required
to exercise such warrants or options in connection with any registration until
the actual sale of the shares of Common Stock issuable upon exercise of such
warrants or options. The Company shall enter into such agreements and shall
otherwise cooperate with the Holders of Registrable Securities in order to
ensure that such Holders are not required to exercise any warrants or options
prior to the date of the actual sale of the shares of Common Stock issuable upon
exercise of such warrants or options.
7. Registration Expenses.
(a) All costs and expenses incurred or sustained in connection with or
arising out of each registration pursuant to Sections 2 and 3 hereof, including,
without limitation, all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with the blue sky
qualification of Registrable Securities), printing expenses, messenger,
telephone and delivery expenses, fees and disbursements of counsel for the
Company, reasonable fees and disbursements of one counsel representing the
Holders of Registrable Securities, such counsel to be selected by the Holders of
a majority of the Registrable Securities to be included in such registration,
fees and disbursements of all independent certified public accountants
(including the expenses relating to the preparation and delivery of any special
audit or "cold comfort" letters required by or incident to such registration),
and fees and disbursements of underwriters (excluding discounts and
commissions), the reasonable fees and expenses of any special experts retained
by the Company of its own initiative or at the request of the managing
underwriters in connection with such registration, and fees and expenses of all
(if any) other Persons retained by the Company (all such costs and expenses
being herein called, collectively, the "Registration Expenses"), will be borne
and paid by the Company. The Company will, in any case, pay its internal
expenses (including, without
Page 15 of 37
-15-
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, and the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which similar securities of the
Company are then listed.
(b) The Company will not bear the cost of nor pay for any stock transfer
taxes imposed in respect of the transfer of any Registrable Securities to any
purchaser thereof by any Holder of Registrable Securities in connection with any
registration of Registrable Securities pursuant to this Agreement.
(c) To the extent that Registration Expenses incident to any registration
are, under the terms of this Agreement, not required to be paid by the Company,
each Holder of Registrable Securities included in such registration will pay all
Registration Expenses which are clearly solely attributable to the registration
of such Holder's Registrable Securities so included in such registration, and
all other Registration Expenses not so attributable to one Holder will be borne
and paid by all sellers of securities included in such registration in
proportion to the number of securities so included by each such seller.
8. Indemnification.
(a) Indemnification by the Company. The Company will indemnify each Holder
requesting or joining in a registration and each underwriter of the securities
so registered, the officers, directors and partners of each such Person and each
Person who controls any thereof (within the meaning of the Securities Act)
against any and all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of any material fact contained in any Prospectus, offering
circular or other document incident to any registration, qualification or
compliance (or in any related Registration Statement, notification or the like)
or any omission (or alleged omission) to state therein any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
any action or inaction required of the Company in connection with any such
registration, qualification or compliance, and the Company will reimburse each
such Holder, underwriter, officer, director, partner and controlling person for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage or liability arises out of or is based
on any untrue statement or omission based upon written information furnished to
the Company in an instrument duly executed by such Holder, underwriter, officer,
director, partner or controlling person and stated to be specifically for use in
such Prospectus, offering circular or other document (or related Registration
Statement, notification or the like).
Page 16 of 37
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(b) Indemnification by Each Holder. Each Holder requesting or joining in a
registration will indemnify each underwriter of the securities so registered,
the Company and its officers and directors and each Person, if any, who controls
any thereof (within the meaning of the Securities Act) and their respective
successors in title and assigns against any and all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of any material fact contained in
any Prospectus, offering circular or other document incident to any
registration, qualification or compliance (or in any related Registration
Statement, notification or the like) or any omission (or alleged omission) to
state therein any material fact required to be stated therein or necessary to
make the statement therein not misleading, and such Holder will reimburse each
underwriter, the Company and each other Person indemnified pursuant to this
paragraph (b) for any legal and any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that this paragraph (b) shall apply only
if (and only to the extent that) such statement or omission was made in reliance
upon written information furnished to such underwriter or the Company in an
instrument duly executed by such Holder and stated to be specifically for use in
such Prospectus, offering circular or other document (or related Registration
Statement, notification or the like) or any amendment or supplement thereto;
and, provided further, that each Holder's liability hereunder with respect to
any particular registration shall be limited to an amount equal to the net
proceeds received by such Holder from the Registrable Securities sold by such
Holder in such registration.
(c) Indemnification Proceedings. Each party entitled to indemnification
pursuant to this Section 8 (the "Indemnified Party") shall give notice to the
party required to provide indemnification pursuant to this Section 8 (the
"Indemnifying Party") promptly after such Indemnified Party acquires actual
knowledge of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party (at its expense) to assume the defense of any claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying Party
who shall conduct the defense of such claim or litigation shall be acceptable to
the Indemnified Party, and the Indemnified Party may participate in such defense
at such party's expense; and provided, further, that the failure by any
Indemnified Party to give notice as provided in this paragraph (c) shall not
relieve the Indemnifying Party of its obligations under this Section 8 except to
the extent that the failure results in a failure of actual notice to the
Indemnifying Party and such Indemnifying Party is damaged solely as a result of
the failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. The reimbursement required by this Section 8 shall be made
by periodic payments during the course of the investigation or defense, as and
when bills are received or expenses incurred.
Page 17 of 37
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9. Contribution in Lieu of Indemnification. If the indemnification provided
for in Section 8 hereof is unavailable to a party that would have been an
Indemnified Party under such Section in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
party that would have been an Indemnifying Party thereunder shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand and such
Indemnified Party on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party or such Indemnified Party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and each Holder of
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 9
shall include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding any provision of this Section 9 to the contrary, (a)
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 and (b) each Holder's
liability hereunder with respect to any particular registration shall be limited
to an amount equal to the net proceeds received by such Holder from the
Registrable Securities sold by such Holder in such registration.
10. Rule 144 Requirements; Form S-3. From time to time after the earlier to
occur of (a) six months following the date on which there shall first become
effective a Registration Statement filed by the Company under the Securities
Act, or (b) the date on which the Company shall register a class of securities
under Section 12 of the Exchange Act, the Company will make every effort in good
faith to take all steps necessary to ensure that the Company will be eligible to
register securities on Form S-3 (or any comparable form adopted by the
Commission) as soon thereafter as possible, and to make publicly available and
available to the Holders of Registrable Securities, pursuant to Rule 144 or Rule
144A of the Commission under the Securities Act, such information as shall be
necessary to enable the Holders of Registrable Securities to make sales of
Registrable Securities pursuant to such Rules. The Company will furnish to any
Holder of Registrable Securities, upon request made by such Holder at any time
after the undertaking of the Company in the
Page 18 of 37
-18-
preceding sentence shall have first become effective, a written statement signed
by the Company, addressed to such Holder, describing briefly the action the
Company has taken or proposes to take to comply with the current public
information requirements of Rule 144 and Rule 144A. The Company will, at the
request of any Holder of Registrable Securities, upon receipt from such Holder
of a certificate certifying (i) that such Holder has held such Registrable
Securities for the applicable holding period under Rule 144 with respect to such
Holder's possession of such Registrable Securities, as in effect on the date of
such certificate, (ii) that such Holder has not been an affiliate (as defined in
Rule 144) of the Company for more than the ninety (90) preceding days, and (iii)
as to such other matters as may be appropriate in accordance with such Rule,
remove from the stock certificates representing such Registrable Securities that
portion of any restrictive legend which relates to the registration provisions
of the Securities Act.
11. Participation in Underwritten Registrations. (a) No Person may
participate in any underwritten registration pursuant to this Agreement unless
such Person (i) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Persons entitled, under the
provisions hereof, to approve such arrangements, and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required by the terms of such underwriting
arrangements. Any Holder of Registrable Securities to be included in any
underwritten registration shall be entitled at any time to withdraw such
Registrable Securities from such registration prior to its effective date in the
event that such Holder shall disapprove of any of the terms of the related
underwriting agreement.
(b) Notwithstanding the priorities set forth in Sections 2(c) and 3(b)
above, in the event that the managing underwriters in any underwritten Demand
Registration or Piggyback Registration inform the Company in writing that the
inclusion therein of any Other Registrable Securities held by management
employees of the Company or any of its subsidiaries would impair the
marketability of the Registrable Securities to be included in such registration,
the Company shall be required to include in such registration only such number
of Other Registrable Securities held by such management employees as the
managing underwriters determine would not negatively impair the Registrable
Securities to be sold in connection therewith. If any such event shall occur,
the other Holders of Registrable Securities (other than any Holder affected by
the restriction described above) shall be entitled to include in such
registration, the number of Registrable Securities that Holders of Other
Registrable Securities would have been entitled to include in such registration
but for such restriction described above (such Registrable Securities to be
allocated pro rata among such other Holders on the basis of the number of
Registrable Securities requested to be included therein by each such Holder).
Page 19 of 37
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12. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not previously entered into
any agreement with respect to its Common Stock granting any registration rights
to any Person, and will not on or after the date of this Agreement enter into
any agreement with respect to its securities which grants demand registration
rights to anyone or which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless such amendment, modification, supplement, waiver or consent is approved
in writing by the Holders of at least fifty-one percent (51%) of the FFL
Registrable Securities, the Holders of at least fifty-one percent (51%) of the
Registrable Securities and the Company, provided, however, that no amendment,
modification or waiver of any provision of this Agreement that adversely affects
the rights of any Party (as hereinafter defined) to this Agreement in a manner
different from the rights of the other Parties shall be effective against such
adversely affected Party unless approved in writing by the holders of at least a
majority of the Registrable Securities then held by all members of such Party.
As used in this Section 12(b), "Party" means any one of the following entities
or groups: (i) the Company, (ii) the Holders of FFL Registrable Securities, and
(iii) the Holders of Other Registrable Securities.
(c) Registrable Securities Held by the Company. Whenever the consent or
approval of Holders of Registrable Securities is required pursuant to this
Agreement, Registrable Securities held by the Company shall not be counted in
determining whether such consent or approval was duly and properly given by such
Holders.
(d) Term. The agreements of the Company contained in this Agreement shall
continue in full force and effect so long as any Holder holds any Registrable
Securities.
(e) Remedies. In the event of a breach by the Company of its obligations
under this Agreement, each Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(f) Notices. Any notice provided for in this Agreement will be in writing
and will be deemed properly delivered if either personally delivered or sent by
Page 20 of 37
-20-
overnight courier or telecopier or mailed certified or registered mail, return
receipt requested, postage prepaid, to the recipient at the address specified
below:
(i) if to a Holder, at such Holder's address on the stock transfer
books of the Company; and
(ii) if to the Company, at:
Chief Manufacturing Holding Corp.
00000 Xxxxxxx 00 Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
with copies to:
Xxxxxxxx Xxxxxxxxx & Xxxx, LLC
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
and to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 12(f). Any such notice shall be effective
(A) if delivered personally or by telecopy, when received, (B) if sent by
overnight courier, when receipted for, and (C) if mailed, three (3) days after
being mailed as described above.
(g) Successors and Assigns. This Agreement and the rights of any Holder
hereunder may be assigned to, and shall inure to the benefit of, any Person to
whom such Holder transfers Registrable Securities, provided that such transfer
is made in compliance with the provisions of the Stockholder Agreement and the
transferee agrees to be bound by all of the terms and conditions of this
Agreement by executing and delivering to the Company an Instrument of Accession.
(h) Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when
Page 21 of 37
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so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
(j) Governing Law. The validity, performance, construction and effect of
this Agreement shall be governed by and construed in accordance with the
internal laws of The Commonwealth of Massachusetts, without giving effect to
principles of conflicts of law.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Page 22 of 37
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as an instrument under seal as of the date first written above.
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Registration Rights Agreement
Page 23 of 37
XXXXXXXX, XXXXXXXXX & XXXX CAPITAL
PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Managing Member
Registration Rights Agreement
Page 24 of 37
FFL EXECUTIVE PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Managing Member
Registration Rights Agreement
Page 25 of 37
GREEN MOUNTAIN PARTNERS II, L.P.
By: Green Mountain Investors II, LLC,
its General Partner
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: XXXXX X. XXXXXX
Title: VICE PRESIDENT
Registration Rights Agreement
Page 26 of 37
/s/ Xxxxxxx X. Fulham
----------------------------------------
Xxxxxxx X. Fulham
Registration Rights Agreement
Page 27 of 37
/s/ Xxxx X. Fulham III
----------------------------------------
Xxxx X. Fulham III
Registration Rights Agreement
Page 28 of 37
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Registration Rights Agreement
Page 29 of 37
/s/ Xxxx Xxxxxxxx
----------------------------------------
Xxxx Xxxxxxxx
Registration Rights Agreement
Page 30 of 37
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Registration Rights Agreement
Page 31 of 37
/s/ Xxx X. Xxxxxxx
----------------------------------------
Xxx X. Xxxxxxx
Registration Rights Agreement
Page 32 of 37
SCHEDULE 1
TO REGISTRATION
RIGHTS AGREEMENT
Other Investors
Green Mountain Partners II, L.P.
Xxxx X. Fulham, III
Xxxxxxx X. Fulham
Xxxxx X. Xxxxxx
Xxxx Xxxxxxxx
Xxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Page 33 of 37
SCHEDULE 2
TO REGISTRATION
RIGHTS AGREEMENT
Instrument of Accession
Reference is made to that certain Registration Rights Agreement, dated as of
August 20, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, _____________________________________, [in order to become]
[is] the owner or holder of _____________ shares of the [Series A Participating
Preferred Stock, $.001 par value per share] [Class A Voting] [Class B
Non-Voting] [Class C Voting] Common Stock, $.001 par value per share (the
"Shares") of the Company [and] hereby agrees that by his [her] [its] execution
hereof the undersigned is a Holder party to the Registration Rights Agreement
subject to all of the restrictions and conditions applicable to Holders set
forth in such Registration Rights Agreement, and all of the Shares [purchased by
the undersigned in connection herewith] [owned by the undersigned as of the date
hereof] (and any and all shares of Common Stock of the Company issued in respect
thereof) are [FFL] [Other] Registrable Securities, subject to all the
restrictions and conditions applicable to [FFL] [Other] Registrable Securities
as set forth in the Registration Rights Agreement. This Instrument of Accession
shall take effect and shall become a part of said Registration Rights Agreement
immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth of
Massachusetts.
Signature:
-----------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Date:
----------------------------------
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date:
-------------------------------
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Fulham Investors, LP, in order to become the owner or
holder of __________ shares of the Class B Non-Voting Common Stock, $.001 par
value per share (the "Shares") of the Company hereby agrees that by its
execution hereof the undersigned is a Holder party to the Registration Rights
Agreement subject to all of the restrictions and conditions applicable to
Holders set forth in such Registration Rights Agreement, and all of the Shares
purchased by the undersigned in connection herewith (and any and all shares of
Common Stock of the Company issued in respect thereof) are Other Registrable
Securities, subject to all the restrictions and conditions applicable to Other
Registrable Securities as set forth in the Registration Rights Agreement. This
Instrument of Accession shall take effect and shall become a part of said
Registration Rights Agreement immediately upon acceptance thereof by the
Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
FULHAM INVESTORS, L.P.
By: Fulham Investors, GP LLC, as general
partner
By: /s/ Xxxxxxx X. Fulham
------------------------------------
Name: Xxxxxxx X. Fulham
Title: Managing Member of Fulham
Investors, GP LLC
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Date: September 24, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date: September __, 2004
signature page to Fulham Fund Instrument of Accession to Registration Rights
Agreement
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Fulham Investors, LP, in order to become the owner or
holder of __________ shares of the Class B Non-Voting Common Stock, $.001 par
value per share (the "Shares") of the Company hereby agrees that by its
execution hereof the undersigned is a Holder party to the Registration Rights
Agreement subject to all of the restrictions and conditions applicable to
Holders set forth in such Registration Rights Agreement, and all of the Shares
purchased by the undersigned in connection herewith (and any and all shares of
Common Stock of the Company issued in respect thereof) are Other Registrable
Securities, subject to all the restrictions and conditions applicable to Other
Registrable Securities as set forth in the Registration Rights Agreement. This
Instrument of Accession shall take effect and shall become a part of said
Registration Rights Agreement immediately upon acceptance thereof by the
Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
FULHAM INVESTORS, L.P.
By: Fulham Investors, GP LLC, as general
partner
By:
------------------------------------
Name: Xxxxxxx X. Fulham
Title: Managing Member of Fulham
Investors, GP LLC
Address:
-------------------------------
-------------------------------
Date: September __, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
---------------------------------
Date: September 24, 2004
signature page to Fulham Fund Instrument of Accession to Registration Rights
Agreement
Page 8 of 14
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Xxx Xxxxxxxx, in order to become the owner or holder of
529,326 shares of the Class B Non-Voting Common Stock, $.001 par value per share
(the "Shares") of the Company hereby agrees that by its execution hereof the
undersigned is a Holder party to the Registration Rights Agreement subject to
all of the restrictions and conditions applicable to Holders set forth in such
Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of Common Stock of
the Company issued in respect thereof) are Other Registrable Securities, subject
to all the restrictions and conditions applicable to Other Registrable
Securities as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
/s/ Xxxx Xxxxxxxx
----------------------------------------
Address: ILLEGIBLE
-------------------------------
-------------------------------
Date: September 24, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date: September __, 2004
signature page to Xxxxxxxx Instrument of Accession to Registration Rights
Agreement
Page 9 of 14
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Xxx Xxxxxxxx, in order to become the owner or holder of
529,326 shares of the Class B Non-Voting Common Stock, $.001 par value per share
(the "Shares") of the Company hereby agrees that by its execution hereof the
undersigned is a Holder party to the Registration Rights Agreement subject to
all of the restrictions and conditions applicable to Holders set forth in such
Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of Common Stock of
the Company issued in respect thereof) are Other Registrable Securities, subject
to all the restrictions and conditions applicable to Other Registrable
Securities as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
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Address:
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Date: September __, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
---------------------------------
Date: September 24, 2004
signature page to Xxxxxxxx Instrument of Accession to Registration Rights
Agreement
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Xxxxx Xxxxxx, in order to become the owner or holder of
150,0000 shares of the Class B Non-Voting Common Stock, $.001 par value per
share (the "Shares") of the Company hereby agrees that by its execution hereof
the undersigned is a Holder party to the Registration Rights Agreement subject
to all of the restrictions and conditions applicable to Holders set forth in
such Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of Common Stock of
the Company issued in respect thereof) are Other Registrable Securities, subject
to all the restrictions and conditions applicable to Other Registrable
Securities as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
/s/ Xxxxx Xxxxxx
----------------------------------------
Address: ILLEGIBLE
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Date: March 31, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date: March 31, 2004
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Xxxxx Xxxxxx, in order to become the owner or holder of
150,0000 shares of the Class B Non-Voting Common Stock, $.001 par value per
share (the "Shares") of the Company hereby agrees that by its execution hereof
the undersigned is a Holder party to the Registration Rights Agreement subject
to all of the restrictions and conditions applicable to Holders set forth in
such Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of Common Stock of
the Company issued in respect thereof) are Other Registrable Securities, subject
to all the restrictions and conditions applicable to Other Registrable
Securities as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
----------------------------------------
Address:
-------------------------------
-------------------------------
Date: March 31, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
---------------------------------
Date: March 31, 2004
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Xxxxx Xxxx, in order to become the owner or holder of
150,000 shares of the Class B Non-Voting Common Stock, $.001 par value per share
(the "Shares") of the Company hereby agrees that by his execution hereof the
undersigned is a Holder party to the Registration Rights Agreement subject to
all of the restrictions and conditions applicable to Holders set forth in such
Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of Common Stock of
the Company issued in respect thereof) are Other Registrable Securities, subject
to all the restrictions and conditions applicable to Other Registrable
Securities as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature: /s/ Xxxxx Xxxx
-----------------------------
Address: ILLEGIBLE
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-------------------------------
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Date: 3-17-05
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date:
-------------------------------
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Xxxxx Xxxx, in order to become the owner or holder of
150,000 shares of the Class B Non-Voting Common Stock, $.001 par value per share
(the "Shares") of the Company hereby agrees that by his execution hereof the
undersigned is a Holder party to the Registration Rights Agreement subject to
all of the restrictions and conditions applicable to Holders set forth in such
Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of Common Stock of
the Company issued in respect thereof) are Other Registrable Securities, subject
to all the restrictions and conditions applicable to Other Registrable
Securities as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature:
-----------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Date:
----------------------------------
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
--------------------------------
Date: 3/22/04
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Xxxxx Xxxxxx, in order to become the owner or holder of
429,326 shares of the Class B Non-Voting Common Stock, $.001 par value per share
(the "Shares") of the Company hereby agrees that by its execution hereof the
undersigned is a Holder party to the Registration Rights Agreement subject to
all of the restrictions and conditions applicable to Holders set forth in such
Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of Common Stock of
the Company issued in respect thereof) are Other Registrable Securities, subject
to all the restrictions and conditions applicable to Other Registrable
Securities as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
/s/ Xxxxx Xxxxxx
----------------------------------------
Address: ILLEGIBLE
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-------------------------------
Date: September 24, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date: September __, 2004
signature page to Xxxxxx Instrument of Accession to Registration Rights
Agreement
Page 14 of 14
Instrument of Accession to Registration Rights Agreement
Reference is made to that certain Registration Rights Agreement, dated as
of August 29, 2003, a copy of which is attached hereto (as amended and in effect
from time to time, the "Registration Rights Agreement"), among Chief
Manufacturing Holding Corp., a Delaware corporation (the "Company"), and the
Holders (as defined therein).
The undersigned, Xxxxx Xxxxxx, in order to become the owner or holder of
429,326 shares of the Class B Non-Voting Common Stock, $.001 par value per share
(the "Shares") of the Company hereby agrees that by its execution hereof the
undersigned is a Holder party to the Registration Rights Agreement subject to
all of the restrictions and conditions applicable to Holders set forth in such
Registration Rights Agreement, and all of the Shares purchased by the
undersigned in connection herewith (and any and all shares of Common Stock of
the Company issued in respect thereof) are Other Registrable Securities, subject
to all the restrictions and conditions applicable to Other Registrable
Securities as set forth in the Registration Rights Agreement. This Instrument of
Accession shall take effect and shall become a part of said Registration Rights
Agreement immediately upon acceptance thereof by the Company.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
----------------------------------------
Address:
-------------------------------
-------------------------------
Date: September __, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
---------------------------------
Date: September 24, 2004
signature page to Xxxxxx Instrument of Accession to Registration Rights
Agreement
AMENDMENT NO. 1 TO STOCKHOLDER AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 TO STOCKHOLDER AGREEMENT AND REGISTRATION RIGHTS
AGREEMENT, dated as of November 4, 2003 (this "Amendment"), by and among
Chief Manufacturing Holding Corp., a Delaware corporation (the "Company"),
Xxxxxxxx, Xxxxxxxxx & Xxxx Capital Partners, L.P., a Delaware limited
partnership ("FFL"), and FFL Executive Partners, L.P., a Delaware limited
partnership ("FFL-EP"; FFL and FFL-EP are collectively referred to herein
as the "FFL Entities").
WHEREAS, the Company, the FFL Entities and the other stockholders of the
Company have entered into a Stockholder Agreement, dated as of August 29, 2003
(the "Stockholder Agreement"), and a Registration Rights Agreement, dated as of
August 29, 2003 (the "Registration Rights Agreement")
WHEREAS, the FFL Entities have entered into agreements of purchase and
sale, each dated as of the date hereof (the "Purchase Agreements"), with each of
GM Capital Partners I, L.P., a Delaware limited partnership ("GM Capital") and
JPMorgan Chase Bank, as Trustee for First Plaza Group Trust, a trust organized
under the laws of New York (the "GM Trust"; GM Capital and the GM Trust are
collectively referred to herein as the "GM Entities"), pursuant to which the FFL
Entities will sell to the GM Entities, and the GM Entities will purchase from
the FFL Entities, the securities of the Company described therein (the
"Transferred Securities"); and
WHEREAS, it is a condition precedent to the effectiveness of the Purchase
Agreements that the Stockholder Agreement and the Registration Rights Agreement
be amended as herein provided;
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. GM ENTITIES AND TRANSFERRED SECURITIES. Anything in the Stockholder
Agreement to the contrary notwithstanding, each of the GM Entities shall
constitute and be deemed an "Other Stockholder" under and for purposes of the
Stockholder Agreement, and the Transferred Securities shall constitute and be
deemed "Other Securities" under and for purposes of the Stockholder Agreement.
Anything in the Registration Rights Agreement to the contrary notwithstanding,
each of the GM Entities shall constitute and be deemed an "Other Stockholder"
under and for purposes of the Registration Rights
-2-
Agreement, and the Transferred Securities shall constitute and be deemed "Other
Registrable Securities" under and for purposes of the Registration Rights
Agreement.
2. AMENDMENTS TO STOCKHOLDER AGREEMENT. Each of the following amendments to
the Stockholder Agreement shall be effective as of the date hereof:
(A) DEFINITIONS. Section 1 of the Stockholder Agreement shall be
amended by adding the following new defined term in the appropriate
alphabetical sequence in such Section:
"ERISA. ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended."
(B) TRANSFER. Section 2.1 of the Stockholder Agreement shall be
amended by amending and restating clause (d) of such Section to read as
follows:
"(d) in the case of any Other Stockholder that is not an individual,
(i) as a distribution to its members or partners, in the case of an Other
Stockholder organized as a limited liability company, limited partnership
or general partnership, (ii) to any successor purchasing substantially all
of its assets, (iii) to any other Person pursuant to such Other
Stockholder's co-sale rights under Section 2.2, or (iv) to any successor
trust or trustee, in the case of an Other Stockholder organized as a trust;
or"
(C) SALE OF THE COMPANY; PROXY. Section 3.4 of the Stockholder
Agreement shall be amended by amending and restating the first sentence of
such Section to read as follows:
"Except where doing so would create a fiduciary relationship or would
otherwise not be permitted under ERISA, each Stockholder hereby appoints
the Majority FFL Stockholders as such Stockholder's true and lawful proxy
and attorney in connection with any Approved Sale, with full power of
substitution, to vote all Voting Securities owned by such Stockholder or
over which such Stockholder has voting control to effectuate the agreements
set forth in this Section 3 in the event of any breach by such Stockholder
of its obligations under this Section 3."
(D) BOARD OF DIRECTORS; PROXY. Section 4.2 of the Stockholder
Agreement shall be amended by amending and restating such Section to read
as follows:
"4.2 PROXY. EXCEPT WHERE DOING SO WOULD CREATE A FIDUCIARY
RELATIONSHIP OR WOULD OTHERWISE NOT BE PERMITTED UNDER ERISA, EACH
STOCKHOLDER HEREBY GRANTS TO THE MAJORITY FFL HOLDERS AN IRREVOCABLE
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PROXY, COUPLED WITH AN INTEREST, TO VOTE ALL OF THE VOTING SECURITIES OWNED
BY SUCH STOCKHOLDER OR OVER WHICH SUCH STOCKHOLDER HAS VOTING CONTROL TO
THE EXTENT NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION 4 IN THE
EVENT OF ANY BREACH BY SUCH STOCKHOLDER OF HIS, HER OR ITS OBLIGATIONS
UNDER THE VOTING AGREEMENT CONTAINED HEREIN."
(E) SUCCESSORS AND ASSIGNS. Section 9 of the Stockholder Agreement
shall be amended by amending and restating such Section to read as follows:
"SECTION 9 SUCCESSORS AND ASSIGNS. This Agreement will bind and inure
to the benefit of and be enforceable by the Company and the Stockholders
and their respective successors and permitted assigns, including, in the
case of a trust, successor trusts or trustees."
3. AMENDMENT TO REGISTRATION RIGHTS AGREEMENT. Section 12 of the
Registration Rights Agreement shall be amended, effective as of the date hereof,
by amending and restating clause (g) of such Section to read as follows:
"(g) Successors and Assigns. This Agreement and the rights of any
Holder hereunder may be assigned to, and shall inure to the benefit of, any
Person, including any successor trust or trustees, to whom such Holder
transfers Registrable Securities, provided that such transfer is made in
compliance with the provisions of the Stockholder Agreement and the
transferee agrees to be bound by all of the terms and conditions of this
Agreement by executing and delivering to the Company an Instrument of
Accession."
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts (including by facsimile), each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
6. EFFECTIVENESS OF AMENDMENT. This Amendment shall become effective as of
the date hereof upon execution of counterparts of this Amendment by the parties
hereto.
7. RATIFICATION. Except as otherwise expressly provided by this Amendment,
the Stockholder Agreement and the Registration Rights Agreement and all
documents, instruments and agreements related thereto are hereby ratified and
confirmed in all respects and shall continue in full force and effect.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
Stockholder Agreement and Registration Rights Agreement to be executed by their
duly authorized officers as of the date first set forth above.
COMPANY:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: XXXXXXX XXXXXXXXX
Title: PRESIDENT
FFL ENTITIES:
XXXXXXXX, XXXXXXXXX & XXXX CAPITAL
PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title:
---------------------------------
FFL EXECUTIVE PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title:
---------------------------------
