EXHIBIT 4.2
STOCKHOLDERS' AGREEMENT, dated as of December 19, 1994, among Perry
Acquisition Partners, L.P. ("Perry"), Xxxxxxxx Street Partners ("Xxxxxxxx"),
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Xxxx Capital Fund IV, L.P., Xxxx Capital Fund IV-B, L.P., Information Partners
Capital Fund, L.P., BCIP Associates and BCIP Trust Associates, L.P.
(collectively "Bain"), Fleet Growth Resources, Inc., Xxxxxxxx Partners II L.P.
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and Turnberry Partners, L.P. (collectively "Fleet" and, together with Xxxxxxxx
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and Bain, the "Co-Investors") and Perry Capital Corp. (the "Company").
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W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, as of the Closing Date, Perry and the Co-Investors are the
holders of substantially all of the issued and outstanding Common Stock of the
Company; and
WHEREAS, the parties hereto wish to enter into certain agreements with
respect to the holdings by Perry and the Co-Investors and their Permitted
Transferees and their respective successors of Common Stock of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, terms defined in the
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heading shall have their respective assigned meanings, and the following
capitalized terms shall have the meanings ascribed to them below:
"Affiliate" shall mean, with respect to any Person, (i) any Person
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that directly or indirectly controls, is controlled by or is under common
control with, such Person, or (ii) any director, officer, partner or employee of
such Person or any Person specified in clause (i) above, or (iii) any Immediate
Family Member of any Person specified in clause (ii) above.
"Agreement" shall mean this Stockholders' Agreement, as the same may,
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in accordance with the terms hereof, be amended, supplemented or otherwise
modified from time to time.
"Beneficial Owner" has the meaning set forth in Rule 13d-3 under the
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Exchange Act.
"Board of Directors" shall mean, unless otherwise specified hereunder,
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the Board of Directors of the Company.
"Business Day" shall mean a day other than a Saturday, Sunday, Federal
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or New York State holiday or other day on which commercial banks in New York
City are authorized or required by law to close.
"By-Laws" shall mean the By-Laws of the Company as in effect on the
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date hereof, as the same may be amended from time to time in accordance with the
terms thereof and hereof.
"Cause" shall mean (i) wilful malfeasance or wilful misconduct by a
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director in connection with the performance of his duties as such, (ii) the
commission by a director of (a) any felony or (b) a misdemeanor involving moral
turpitude or (iii) a determination by a court of competent jurisdiction in the
United States that such director, as such or in any other capacity (whether or
not relating to the Company), breached a fiduciary duty owed by him or her to
another Person.
"Certificate of Incorporation" shall mean the Certificate of
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Incorporation of the Company as in effect on the date hereof, as the same may be
amended from time to time in accordance with the terms thereof and hereof.
"Closing Date" shall mean the date of the sale of Common Stock to the
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Initial Investors pursuant to their respective Stock Subscription Agreements
which date shall be the date on which the transactions contemplated by the
Merger Agreement are consummated.
"Common Stock" shall mean the Company's Class A Common Stock, par
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value $.01 per share, and Class B Common Stock, par value $.01 per share and any
Common Stock issued or issuable with respect to any Class A Common Stock or
Class B Common Stock by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise.
"Designated Perry Director" shall mean a Perry Director (as defined in
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Section 2.1(a)) who is Xxxxxxx X. Xxxxx, Xxxxxxxx X. Xx, Xxxx X. Xxxxxxxxxx or
any other Perry Director who is designated by Perry in writing as a Designated
Perry Director in any case until such time as Perry shall in writing revoke such
designation.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, and the rules and regulations promulgated thereunder, as the same may
be amended from time to time.
"FTD Association" shall mean FTD Association, a Michigan nonprofit
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corporation organized on a membership basis in accordance with the Merger
Agreement.
"FTD Member Offering" shall mean an offering made to FTD Association
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members pursuant to Article IV of the Mutual Support Agreement.
"FTDI" shall mean Florists' Transworld Delivery, Inc., a Michigan
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corporation.
"Governmental Authority" shall mean any nation or government, any
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state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Group" means any group of Persons acquiring, holding, voting or
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disposing of voting securities of the Company which would be required under
Section 13(d) of the Exchange Act to file a statement on Schedule 13D or
Schedule 13G with the SEC as a "person" within the meaning of Section 13(d)(3)
of the Exchange Act if such group beneficially owned voting securities
representing more than 5% of any class of then-outstanding voting securities of
the Company.
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"Immediate Family Member" shall mean, with respect to any natural
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Person, a spouse, parent or child of such Person.
"Indenture" shall mean, that certain Indenture dated as of December 1,
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1994 between FTD Acquisition Corporation and First Trust of New York, National
Association.
"Initial Investors" shall mean Perry and the Co-Investors.
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"Merger Agreement" shall mean that certain Agreement and Plan of
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Merger, dated August 2, 1994, among the Company, FTD Acquisition Corporation
(formerly named IRIS Acquisition Corp.), a Delaware corporation ("Sub"), and
Florists' Transworld Delivery Association, a Michigan nonprofit corporation.
"Mutual Support Agreement" shall mean that certain Mutual Support
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Agreement attached to the Merger Agreement as Exhibit A and to be entered into
between FTDI and FTD Association prior to the Closing Date.
"Permitted Holders" shall have the meaning ascribed to it in the
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Indenture.
"Permitted Transferee" shall mean any Person to whom an Initial
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Investor (or any direct or indirect Permitted Transferee thereof) transfers
Common Stock in accordance with the terms of this Agreement and the Stock
Subscription Agreement by which such transferor is bound (other than pursuant to
a Public Offering or, following a Public Offering, pursuant to Rule 144 or Rule
144A under the Securities Act) and who becomes a party to, and is bound to the
same extent as its transferor by the terms of, this Agreement.
"Person" shall mean any individual, corporation, partnership, trust,
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joint stock company, business trust, unincorporated association, joint venture
or other entity of any nature whatsoever.
"Public Offering" shall mean the sale of Class A Common Stock (or
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Class A Common Stock equivalents) to the public in an offering pursuant to an
effective registration statement filed with the SEC under the Securities Act,
which results in an active trading market in the Class A Common Stock (or such
Class A Common Stock Equivalents) (it being understood that such an active
trading market shall be deemed to exist if, among other things, the Class A
Common Stock (or such Class A Common Stock equivalents) is listed on a national
securities exchange or on the Nasdaq Stock Market-National System); provided
that a Public Offering shall not include (i) an offering made in connection with
a business acquisition or combination or an employee benefit plan; (ii) an FTD
Member Offering; or (iii) an offering of securities by the Company solely to
members of FTD Association.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities" shall mean shares of (i) any Class A Common Stock of the
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Company issued to Stockholders pursuant to the Stock Subscription Agreements,
(ii) any Class A Common Stock of the Company issued or issuable upon conversion
of any Class B Common Stock of the Company issued to Stockholders pursuant to
the Stock Subscription Agreements and (iii) any Class A Common Stock of the
Company issued or issuable with respect to any of the securities
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referred to in clauses (i) and (ii) above by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any particular
Securities, once issued such Securities shall cease to be Securities when (a) a
registration statement with respect to the sale of such Securities shall have
become effective under the Securities Act and such Securities shall have been
disposed of in accordance with such registration statement, (b) they shall have
been distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act after a Public Offering, (c) they shall have been
transferred pursuant to Rule 144A (or any successor provision) under the
Securities Act after a Public Offering, (d) they shall have been otherwise
transferred in accordance with this Agreement, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law then in
force, or (e) they shall have ceased to be outstanding.
For purposes of this Agreement, Securities shall include Class B
Common Stock; provided that the Company shall have no obligation to register
Class B Common Stock.
"Securities Act" shall mean the Securities Act of 1933, as amended,
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and the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"Significant Subsidiary" shall mean any Subsidiary within the meaning
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of Section 1-02 of Regulation S-X promulgated by the Securities and Exchange
Commission.
"Stock Subscription Agreements" shall mean, collectively, the Common
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Stock Subscription Agreement dated as of December 19, 1994 between Perry and the
Company, and the Common Stock Subscription Agreements dated as of December 19,
1994 between each Co-Investor and the Company.
"Stockholders" shall mean Perry and the Co-Investors and their
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respective Permitted Transferees.
"Subsidiary" means, with respect to any Person, any corporation,
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partnership, association or other business entity of which fifty percent (50%)
or more of the total voting power of shares of capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof, or fifty percent (50%) or more of the
equity interest therein, is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of such
Person or a combination thereof.
"Third Party" shall mean any Person other than the Stockholders and
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their Affiliates.
"Trademark License Agreement" means that certain Trademark License
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Agreement attached to the Mutual Support Agreement as Exhibit A.
"Transfer" or "Transferred" shall mean any transfer, sale, assignment,
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exchange, mortgage, pledge, hypothecation or other disposition of any Common
Stock issued to Stockholders pursuant to the Stock Subscription Agreements or
any interest, whether legal or beneficial, therein.
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1.2 Other Definitional Provisions: Interpretation.
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(a) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(b) The headings in this Agreement are included for convenience
of reference only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) For purposes of comparing the beneficial ownership of any
Person on the date of execution and delivery of this Agreement to the level of
such ownership at any later time, the level of ownership on such later date
shall be adjusted to eliminate the effect of any subdivision of the Common
Stock, any combination of the Common Stock, any issuance of Common Stock by
reason of any reclassification (including, without limitation, any
reclassification in connection with a merger or consolidation), or any dividend
payable in Common Stock.
SECTION 2. VOTING AGREEMENTS
2.1 Election of Directors.
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(a) Each Stockholder hereby agrees that so long as this Agreement
shall remain in effect, such Stockholder shall take all actions, including but
not limited to voting all of the Class A Common Stock owned or held of record by
such Stockholder, so as to elect and, during such period, to continue in office
a Board of Directors of the Company and each Subsidiary of the Company
consisting solely of the following:
(i) with respect to the Boards of Directors of the Company,
Renaissance Greeting Cards, Inc. and each other direct or indirect
Subsidiary of the Company other than FTDI and Subsidiaries of FTDI (other
than Renaissance Greeting Cards, Inc.):
(A) 6 designees of Perry (each such designee of Perry a
"Perry Director");and
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(B) 3 designees of Bain (each such designee of Bain a
"Co-Investor Director")
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(ii) with respect to the Boards of Directors of FTDI and
each Subsidiary of FTDI other than Renaissance Greeting Cards, Inc.:
(A) 6 designees of Perry (each such designee of Perry a
"Perry Director");
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(B) 2 designees of Bain (each such designee of Bain a
"Co-Investor Director"); and
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(C) 2 designees of FTD Association (each such designee of
FTD Association an "FTDA Director").
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(b) If at any time during the period specified in paragraph (a)
above, the Company or any Subsidiary of the Company is required by applicable
law or the terms of any security issued by the Company to increase the size of
its Board of Directors, each Stockholder shall take all actions, including but
not limited to voting all of the Class A Common Stock owned or held of record by
such Stockholder, so as to insure that upon the election of such additional
director or directors, such Board of Directors shall consist of a majority of
directors designated by Perry.
(c) If at any time during the period specified in paragraph (a)
above, Perry or Bain (in either case, based on the action of holders of a
majority of the shares of Common Stock beneficially owned by it) or FTD
Association shall notify in writing the others of its desire to remove, with or
without Cause, any director of the Company or any Subsidiary of the Company
previously designated by it, each Stockholder shall vote all of the Class A
Common Stock owned or held of record by it so as to remove such director. The
Stockholder delivering such notice of removal shall indemnify and hold harmless
each other Stockholder and its directors, officers, partners, stockholders,
agents and employees against any losses, claims, damages, liabilities and
expenses incurred in connection with such removal.
(d) If at any time during the period specified in paragraph (a)
above, any director previously designated by Perry, Xxxx or FTD Association
ceases to serve on the Board of Directors of the Company or any Subsidiary of
the Company (whether by reason of death, resignation, removal or otherwise),
such party or FTD Association who designated such director shall be entitled to
designate a successor director to fill the vacancy created thereby.
(e) The parties hereto hereby agree that any individual designated as
a director of the Company may be removed for Cause with or without the consent
of the party or FTD Association which designated such individual. No such
removal of an individual designated pursuant to this Section 2.1 shall affect
any of the rights to designate a different individual pursuant to this Section
2.1.
(f) Each duly designated committee of the Board of Directors of the
Company or any Subsidiary shall consist of at least one Perry Director and at
least one Co-Investor Director. Such committees may make recommendations to
their respective Boards of Directors but shall not have the authority to act in
lieu of their respective Boards of Directors.
(g) For so long as Fleet shall own at least thirty-five percent of
the Common Stock owned by Fleet on the Closing Date, Fleet shall have the right
to have one individual who is an employee of Fleet attend meetings of the Board
of Directors (the "Observer"). The Observer shall not have any right to vote on
or participate in any matter presented to the Board. The Company shall give
notice of each meeting of the Board to the Observer in the same manner as was
given to the directors. The Observer shall keep confidential
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any information or materials observed at any such meeting. The Observer may at
the election of a majority of Members of the Board of Directors be excluded from
any deliberations or discussions of the Board if and to the extent that the
presence of such Observer would reasonably be expected to result in the waiver
of attorney client privilege. The Observer, if any, shall be entitled to the
reimbursement of expenses for attendance at Board meetings, in the same manner
as are Directors.
2.2 Certain Actions.
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(a) Supermajority Vote. The affirmative vote of at least a
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majority of the members of the Board of Directors of the Company or a Subsidiary
of the Company, as the case may be, which majority shall include at least two
Designated Perry Directors and at least two Co-Investor Directors, shall be
required with respect to any of the following transactions, except as otherwise
provided in this Agreement or required by applicable law:
(i) amendment of the Certificate of Incorporation or
By-Laws of the Company or any Significant Subsidiary of the Company;
(ii) any increase or decrease in the number of
directors of the Company or any Significant Subsidiary of the Company;
(iii) (A) any recapitalization of the Company or any
issuance or sale by the Company or any Significant Subsidiary of the
Company of any of its equity or debt securities (whether by public
offering, private placement or otherwise), provided that this provision
shall not apply to (1) any issuance of shares of Common Stock in connection
with an employee benefit plan or employment agreement (so long as the
aggregate number of shares of Common Stock issued or issuable in connection
with all such plans and agreements does not exceed 15% of the then
outstanding shares of Common Stock), (2) any FTD Member Offering, (3) any
issuance of securities in connection with warrants issued in connection
with the Indenture or (4) any exchange of Class B Common Stock for Class A
Common Stock in connection with a Tag-Along Sale or (B) any incurrence of
any long-term indebtedness (including guarantees of such indebtedness) by
the Company or any Significant Subsidiary (other than debt incurred under
or pursuant to the Credit Agreement (defined below) or the Indenture
(defined below)) which is not reflected in the annual operating budget and
which exceeds $10,000,000 in the aggregate at any one time outstanding;
(iv) the registration by the Company or any Subsidiary
of the Company of any of its securities pursuant to the Securities Act in
connection with any public offering of such securities, except for any such
registration made (A) pursuant to Section 4 hereof, (B) in connection with
the issuance of securities which are subject to the proviso in clause
2.2(a) (iii) above, (C) pursuant to the Registration Rights Agreement,
dated as of the Closing Date, among the Company, FTD Acquisition
Corporation, BT Securities Corporation and Xxxxxxxxxx Securities or (D) the
Securityholders' and Registration Rights Agreement, dated as of the Closing
Date (the "Security holders' and Registration Rights Agreement"), among the
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Company, the Co-Investors, BT Securities Corporation and Xxxxxxxxxx
Securities;
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(v) except for (A) assets acquired in the ordinary
course of business and (B) capital assets acquired in accordance with the
Company's or any of its Significant Subsidiary's annual budget for capital
expenditures as reflected in the Company's or the Significant Subsidiary's
Board approved annual operating budget, the acquisition by the Company or
any Significant Subsidiary of the Company, by merger, consolidation or
otherwise, of assets or stock of any other Person exceeding an aggregate of
$4,000,000 in any fiscal year;
(vi) except for transactions between the Company and
any Significant Subsidiary or between Significant Subsidiaries, any merger,
consolidation or sale of the Company or any Significant Subsidiary of the
Company; any mortgage, lease or other disposition of any material amount of
assets of the Company or any Significant Subsidiary of the Company; or the
liquidation of the Company or any Significant Subsidiary of the Company;
provided, however, that the foregoing shall not apply to sales or transfers
of Common Stock to any Person in accordance with the terms of this
Agreement;
(vii) the declaration or payment of dividends or other
distributions to stockholders of the Company, except for the payment of any
dividend or distribution the declaration of which was previously approved
pursuant to this Section 2.2(a);
(viii) the repurchase, exchange or redemption by the
Company or any Subsidiary of the Company of any of its securities other
than (A) in connection with satisfying any of its obligations under an
employee benefit plan or employment agreement, (B) any required redemption
or exchange pursuant to the terms of the instrument governing any security
or (C) any exchange of Class B Common Stock for Class A Common Stock in
connection with a Tag-Along Sale;
(ix) except for transactions in the ordinary course of
business, transactions with Affiliates of the Company;
(x) the engagement by the Company or any Subsidiary of
the Company in any activity outside the ordinary course of its business (A)
which is not similar or related to an existing business or an extension
thereof that utilizes FTDI's distribution network, technology or
intellectual property and (B) which is material to the business of the
Company and its Subsidiaries, taken as a whole;
(xi) the making of any loan to Perry or any of its
Affiliates; and
(xii) any material refinancing or restructuring of the
indebtedness incurred under the Credit Agreement, dated as of the Closing
Date (the "Credit Agreement"), by and among Bankers Trust Company, as
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agent, and the other banks listed on the signature pages thereto or the
Indenture, in each case which is reasonably likely to have an adverse
effect on the Company.
(b) Consent Matters. Prior to the submission of either of the
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following matters for approval of the Board of Directors of the Company or a
Subsidiary of the Company,
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as the case may be, such matter shall first be approved by each of Perry and
Bain, which approval shall not be unreasonably withheld, except as required by
applicable law:
(i) approval of each annual operating budget for the Company
and any Significant Subsidiary of the Company and of any material amendment
or modification thereof or material deviation therefrom; or
(ii) the appointment of the Chairman and Chief Executive Officer
of the Company and FTDI (it being understood that Bain hereby consents to
the appointment of Xxxxxxx Xxxxx as the initial Chairman of the Company and
FTDI and Xxxxxxx Xxxxx as the Chief Executive Officer of FTDI).
On or prior to the Closing Date, the Company shall adopt by-laws incorporating
the provisions of Section 2.2(a) and 2.2(b), and such incorporating provisions
of the by-laws shall not be amended without the affirmative vote of at least two
Designated Perry Directors and at least two Co-Investor Directors.
(c) Notwithstanding anything to the contrary contained herein, any
determination by the Board of Directors of whether to purchase the Common Stock
of a Section 3.7 Selling Stockholder (as defined) shall only require the
affirmative vote of (i) a majority of the Co-Investor Directors if Perry is the
Section 3.7 Selling Stockholder and (ii) a majority of the Designated Perry
Directors if any Co-Investor is the Section 3.7 Selling Stockholder.
(d) Except as provided in Section 3.7, any purchase, redemption or
exchange by the Company of Common Stock held by any of the Co-Investors, their
Affiliates or Permitted Transferees shall be offered to each of them pro rata
among all Co-Investors, their Affiliates and their Permitted Transferees.
2.3 Other Voting Matters. The Company has previously furnished to the
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Stockholders copies of its Certificate of Incorporation and By-Laws, each as
in effect on the date hereof (the "Charter Documents"). From and after the
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Closing Date, each Stockholder shall vote its shares of Common Stock, at any
regular or special meeting of stockholders of the Company or in any written
consent executed in lieu of such a meeting of stockholders, in either case in
accordance with the vote of the Directors designated by such Stockholder, and
shall take all actions necessary, to ensure that the Charter Documents do not,
at any time, conflict with the provisions of this Agreement.
SECTION 3. TRANSFERS AND ISSUANCES
3.1 Limitations on Transfer.
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(a) Each Stockholder hereby agrees that, except for Transfers
effected pursuant to an effective registration statement filed under the
Securities Act, no Transfer shall occur unless the Company has been furnished
upon its request with an opinion, in form and substance reasonably satisfactory
to the Company, of counsel reasonably satisfactory to the Company that such
Transfer is exempt from the provisions of Section 5 under the Securities Act.
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(b) Each Stockholder hereby agrees that except for Transfers in
connection with a Public Offering, Transfers pursuant to the registration rights
granted under Section 4 and, following a Public Offering, Transfers pursuant to
Rule 144 or Rule 144A under the Securities Act, no Transfer shall occur unless
the transferee shall agree to become a party to, and be bound to the same extent
as its transferor by the terms of this Agreement pursuant to the provisions of
Section 5.7.
(c) No Transfer (other than to a Permitted Holder) shall be made by
such Stockholder or any of its Affiliates to any Person (including to any Person
who is part of any Group which includes the proposed transferee) who, after due
inquiry (which shall include a signed letter from such transferee which contains
representations from such transferee that the proposed transfer will not violate
this Section 3.1(c) (i)), would beneficially own Voting Stock (as defined in the
Indenture) of the Company of more than 35% of the total outstanding Voting Stock
of the Company (assuming the conversion of all Class B Common into Class A
Common Stock) and (ii) no Transfer shall be made by such Stockholder or any of
its Affiliates to any Person which would cause a Change of Control Event (as
defined in the Credit Agreement) to occur under the Credit Agreement (assuming
the conversion of all Class B Common Stock into Class A Common Stock.
3.2 Transfers to Affiliates. Notwithstanding any other provision of this
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Agreement to the contrary, each Initial Investor and its Affiliates (but not any
other Permitted Transferee of any thereof) shall be entitled from time to time,
without compliance with any of the procedures specified in Section 3.5, or 3.7,
to Transfer any or all of the Common Stock beneficially owned by it to any of
its Affiliates who agree to become a party to, and be bound to the same extent
as its transferor by the terms of, this Agreement. Any Transfer by any Initial
Investor to its partners of any or all of the Common Stock beneficially owned by
it (including a distribution of such Common Stock to such Initial Investor's
partners upon a liquidation of such Initial Investor or otherwise) shall be
deemed to be a Transfer to Affiliates of such Initial Investor for purposes of
this Section 3.2.
3.3 Effect of Void Transfers. In the event of any purported Transfer of
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any Common Stock in violation of the provisions of this Agreement, such
purported Transfer shall be void and of no effect and the Company shall not give
effect to such Transfer.
3.4 Legend on Common Stock. Each certificate representing Common Stock
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issued to any Stockholder shall bear the following legend on the face thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS' AGREEMENT AMONG PERRY ACQUISITION PARTNERS, L.P., XXXX
CAPITAL FUND IV, L.P., XXXX CAPITAL FUND IV-B, L.P., INFORMATION PARTNERS
CAPITAL FUND, L.P., BCIP ASSOCIATES, BCIP TRUST ASSOCIATES, L.P., FLEET
GROWTH RESOURCES, INC., XXXXXXXX PARTNERS II, L.P., TURNBERRY PARTNERS,
L.P., XXXXXXXX STREET PARTNERS AND THE COMPANY, A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE COMPANY. 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 SUCH
STOCKHOLDERS'
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AGREEMENT AND (A) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) IF THE COMPANY HAS BEEN
FURNISHED UPON ITS REQUEST WITH AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE RULES AND REGULATIONS
THEREUNDER. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
STOCKHOLDERS' AGREEMENT, INCLUDING RESTRICTIONS RELATING TO THE EXERCISE OF
ANY VOTING RIGHTS GRANTED BY THE SECURITIES."
3.5 Tag-Along Rights.
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(a) With respect to any proposed Transfer, or related series of
proposed Transfers (other than as provided in Section 3.2 or 3.6), by Perry and
its Affiliates (in such capacity, a "Transferring Stockholder") of Class A
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Common Stock at any time after the Transferring Stockholder has Transferred more
than 5% of the Class A Common Stock initially held by Perry on the Closing Date
(excluding for the purposes of such calculation, Transfers made pursuant to
Sections 3.2, 3.6 and if to any Stockholder or its Affiliates, 3.7), the
Transferring Stockholder shall have the obligation, and each of the other
Stockholders shall have the right, to require the proposed transferee to
purchase (a "Tag-Along Sale") from such Stockholder (in such capacity, a
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"Tagging Stockholder") out of the total number of shares of Common Stock
--------------------
proposed to be acquired in the Tag-Along Sale the same proportion of the number
of shares of Common Stock to be sold pursuant to the Tag-Along Sale as the total
number of shares of Common Stock held on the date of sale by such Tagging
Stockholder bears to the total number of shares of Common Stock of held on such
date by the Transferring Stockholder and all Tagging Stockholders and all other
Persons exercising similar "tag-along" rights pursuant to contractual
commitments of the Company, and at the same price and upon the same terms and
conditions (including without limitation time of payment and form of
consideration) as to be paid and given to the Transferring Stockholder. All
shares of Common Stock for purposes of this Section shall be treated as if they
were a single class.
(b) The Transferring Stockholder shall give notice to the other
Stockholders of each proposed Tag-Along Sale at least 30 days prior to the
proposed consummation of such Tag-Along Sale, setting forth the number of shares
of Common Stock proposed to be sold pursuant to the Tag-Along Sale, the name and
address of the proposed transferee, the proposed amount and form of
consideration and other terms and conditions of payment offered by the proposed
transferee, and a representation that the proposed transferee has been informed
of the tag-along rights provided for in this Section 3.5 and has agreed to
purchase Common Stock in accordance with the terms hereof. The tag-along rights
provided by this Section 3.5 must be exercised by the Tagging Stockholder within
15 days following receipt of the notice required by the preceding sentence, by
delivery of a written notice to the Transferring Stockholder indicating such
Tagging Stockholder's desire to exercise its rights and specifying the number of
shares of Common Stock it desires to sell. If the proposed transferee fails to
purchase Common Stock from the Tagging Stockholder which has properly exercised
its tag-along rights,
11
then the Transferring Stockholder shall not be permitted to make the proposed
Transfer, and any such attempted Transfer shall be void and of no effect, as
provided in Section 3.3 hereof.
(c) If the Tagging Stockholder exercises its rights under
Section 3.5(a), the closing of the purchase of the Common Stock with respect to
which such rights have been exercised shall take place concurrently with the
closing of the sale of the Transferring Stockholder's Common Stock. No Transfer
shall occur pursuant to this Section 3.5 unless the transferee shall agree to
become a party to, and be bound to the same extent as its transferor by the
terms of, this Agreement and the transfer shall otherwise comply with the
provisions of Sections 3.1 and 5.7.
(d) If the proposed Tag-Along Sale is not consummated within 90
days of the expiration of the other Stockholders' tag-along rights with respect
to such Tag-Along Sale (as described herein), such Tag-Along Sale shall again be
subject to this Section 3.5.
3.6 Public Offerings, etc. The provisions of Sections 3.5 and 3.7
----------------------
shall not be applicable to offers and sales of Common Stock (i) in a Public
Offering, (ii) pursuant to the registration rights granted under Section 4,
(iii) following a Public Offering, pursuant to Rule 144 or Rule 144A under the
Securities Act or (iv) in an FTD Member Offering or other offering of securities
by the Company made solely to members of FTD Association.
3.7 Right of First Refusal.
----------------------
(a) Subject to the provisions of Section 3.1 and except as
provided in Sections 3.2 and 3.6, if any Stockholder (a "Section 3.7 Selling
-------------------
Stockholder")at any time intends to Transfer any Common Stock to a Third Party
-----------
in a bona-fide arms-length transaction, the Section 3.7 Selling Stockholder
shall first give to the Company and the other Stockholders who are not
Affiliates of the Section 3.7 Selling Stockholder (the "Other Stockholders")
------------------
written notice (a "Seller's Notice") at least 75 days in advance of the proposed
---------------
Transfer (the "Notice Period"), stating the Section 3.7 Selling Stockholder's
-------------
intention to make such Transfer, the name of the proposed Third Party
transferee, the number of shares of Common Stock to be transferred (the "Offered
-------
Securities"), the proposed amount and form of consideration for the Offered
----------
Securities which the Section 3.7 Selling Stockholder is to be paid by the Third
Party (the "Offer Price") and the other material terms upon which such Transfer
-----------
is proposed.
(b) During the first 30 days of the Notice Period, the Company shall
have an irrevocable option to purchase (or to cause one or more of its
Significant Subsidiaries to purchase) all (but not less than all) of the Offered
Securities at the applicable Offer Price. The option of the Company under this
Section 3.7(b) shall be exercisable by written notice to the Section 3.7 Selling
Stockholder and each other Stockholder given on or before the 30th day of the
Notice Period.
(c) If after the 30th day of the Notice Period the Company has not
exercised its option to purchase all of the Offered Securities under Section
3.7(b), the Other Stockholders jointly shall have an irrevocable option to
purchase all (but not less than all) of the Offered Securities at the applicable
Offer Price. The option by the Other Stockholders shall be exercisable by
written notice to the Section 3.7 Selling Stockholder and each other Stockholder
given on or before the 45th day of the Notice Period. Each Other Stockholder
shall be entitled to
12
purchase a portion of the Offered Securities equal to that percentage of the
Offered Securities determined by dividing the number of shares of Common Stock
owned by such Other Stockholder on such date by the total number of shares of
Common Stock owned by all Other Stockholders on such date (the "Other
-----
Stockholder's Proportionate Share"). To the extent that any such Other
---------------------------------
Stockholder does not subscribe for such Other Stockholder's Proportionate Share
of the Offered Securities, each Other Stockholder participating under this
Section 3.7(c) shall have an opportunity, exercisable by written notice to the
Section 3.7 Selling Stockholder (a "Supplemental Notice") during the remainder
-------------------
of the Notice Period, to purchase that portion of the Offered Securities not
purchased in an amount determined by dividing the number of additional shares of
Common Stock subscribed to by such participating Other Stockholder (as set forth
in its Supplemental Notice) by the total number of additional shares of Common
Stock subscribed to by all participating Other Stockholders (as set forth in
each of their respective Supplemental Notices) who elect to purchase the Offered
Securities not purchased or determined by such other method as such
participating Other Stockholders shall agree. Each of the Stockholders may
assign its rights as an Other Stockholder to any of its respective Affiliates;
provided, that such Affiliates shall comply with the provisions of Section 3.1
and Section 5.7.
(d) If at the end of the Notice Period the Company and the Other
Stockholders have not elected to exercise its or their option to purchase all of
the Offered Securities under this Section 3.7, the Section 3.7 Selling
Stockholder shall be free, for a period of 90 days from the expiration of the
Notice Period, to sell the Offered Securities to the Third Party transferee at a
price equal to or greater than the Offer Price (without modification of the form
or forms of consideration proposed other than to substitute cash (in the amount
of the fair market value of the non-cash consideration) for noncash
consideration) and on the same (or no more favorable to such Third Party) terms
as were contained in the Seller's Notice, provided that such Transfer complies
with the provisions of Section 3.1 and Section 5.7.
(e) If the Company or the Other Stockholders exercise its or their
option, as the case may be, under this Section 3.7, the closing of the purchase
of the Offered Securities with respect to which such option has been exercised
shall take place on the twentieth Business Day after the later of (i) the date
the Company or the Other Stockholders, as the case may be, give notice of such
exercise and the fair market value determination, as provided below, if any, is
completed and (ii) the expiration of such time as the Company or the Other
Stockholders, as the case may be, may reasonably require in order to comply with
applicable United States Federal and state laws and regulations, which in no
event shall be more than 60 days after the date specified in clause (i) of this
Section 3.7(e). The Other Stockholders shall be deemed to have given notice of
exercise on the earliest date on which the Offered Securities are fully
subscribed. Upon exercise by the Company or the Other Stockholders, as the case
may be, of its or their option under this Section 3.7, the Company or the
participating Other Stockholders, as the case may be, and the Section 3.7
Selling Stockholder shall be legally obligated to consummate the purchase
contemplated thereby and shall use their best efforts to make all necessary
filings and to secure any approvals required and to comply as soon as
practicable with all applicable United States Federal and state laws and
regulations in connection therewith. If any portion of the Offer Price is
proposed to be paid in a form other than cash, the Company or the participating
Other Stockholders, as the case may be, shall have the option to pay such
consideration in the form proposed or in an amount of cash equal to the fair
market value of such non-cash consideration. The fair market value of any non-
cash consideration shall be determined by the mutual agreement of the Company or
the participating Other Stockholders, as the case
13
may be, and the Section 3.7 Selling Stockholder or, if they cannot so agree
within 20 Business Days after exercise of the option, by a nationally recognized
investment banking firm selected by the Company or the participating Other
Stockholders, as the case may be, and the Section 3.7 Selling Stockholder (which
investment banking firm shall be retained by, and the fees and expenses of which
shall be shared equally by, the Company or the participating Other Stockholders,
as the case may be, on the one hand, and the Section 3.7 Selling Stockholder on
the other hand).
(f) No Transfer shall occur pursuant to this Section 3.7 unless the
transferee shall agree to be bound to the same extent as its transferor by the
terms of this Agreement pursuant to the provisions of Section 3.1 and 5.7.
(g) No Stockholder may sell, assign, encumber or otherwise transfer
any Common Stock except in accordance with applicable laws and regulations
(including any applicable provisions of Regulation Y under the Bank Holding
Company Act of 1956, as amended).
SECTION 4. REGISTRATION RIGHTS
4.1 Demand Registration.
-------------------
(a) Registration Request. Subject to the provisions of Sections
--------------------
4.1(f) and 4.10, at any time and from time to time after the earlier of (i) the
Company's first Public Offering and (ii) the fourth anniversary of the Closing
Date, upon the written request to the Company and each other Stockholder (a
"Registration Request") of the holders of a majority of Securities held by
--------------------
Perry, its Affiliates and their Permitted Transferees, on the one hand, or
holders of a majority of the Securities held by the Co-Investors, their
Affiliates and their Permitted Transferees, on the other hand (in each case,
together with any other Co-Investor, its Affiliates and Permitted Transferees
joining in such request, a "Requesting Stockholder"), that the Company effect
----------------------
the registration under the Securities Act of all or part of the Securities owned
by such Requesting Stockholder, the Company will use its best efforts to effect
the registration under the Securities Act of such Securities and all other
Securities which the Company has been requested to register by any other
Stockholder by written request received by the Company within 20 days after the
giving of written notice of such Registration Request; provided, however, that
the Securities covered by any such Registration Request shall constitute not
less than five percent (5%) of the aggregate number of shares of Common Stock
outstanding on a fully diluted basis at the time of the Registration Request.
No other securities of the Company except Securities held by any other
Stockholder and securities held by Persons entitled to exercise "piggy-back"
registration rights pursuant to contractual commitments of the Company shall be
included in a registration under this Section 4.1.
(b) Priority in Demand Registration. In a registration pursuant to
-------------------------------
this Section 4.1 involving an underwritten offering, if the managing underwriter
of such underwritten offering shall inform the Company and the relevant
Stockholders by letter of its belief that the Securities to be included in such
registration would adversely affect the ability to effect such offering, then
the Company will be required to include in such registration only that number of
Securities which it is so advised should be included in such offering. In such
event, securities of the Company shall be registered in such offering as
follows: (i) first, the Securities of the
14
Requesting Stockholder, its Affiliates and their Permitted Transferees (pro rata
based on the amount of Securities sought to be registered by such Persons), (ii)
second, the Securities of Stockholders and their respective Affiliates and
Permitted Transferees which have been requested to be included in such
registration pursuant to Section 4.2 and the securities of Persons party to the
Stockholders' and Registration Rights Agreement which have been requested to be
included in such registration pursuant to the Stockholders' and Registration
Rights Agreement (pro rata based on the amount of securities sought to be
registered by such Persons), and (iii) third, the securities of other Persons
entitled to exercise "piggy-back" registration rights pursuant to other
contractual commitments of the Company (pro rata based on the amount of
securities sought to be registered by such Persons).
(c) Registration Statement Form. Registrations under this Section
---------------------------
4.1 shall be on such appropriate registration form of the SEC (i) as shall be
selected by the Company and (ii) as shall permit the disposition of the
Securities being registered in accordance with the intended method or methods of
disposition specified in the request for such registration. The Company agrees
to include in any such registration statement all information which, in the
opinion of counsel to the underwriters, the Requesting Stockholder and the
Company, is required to be included.
(d) Effective Registration Statement. A registration requested
--------------------------------
pursuant to this Section 4.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective and
the Requesting Stockholder, its Affiliates and its Permitted Transferees have
sold at least seventy-five percent (75%) of the Securities included by them in
such registration statement, or (ii) 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 Authority for any reason not
attributable to the Requesting Stockholder or any of its Affiliates and has not
thereafter become effective.
(e) Limitations on Demand Registrations. Notwithstanding anything
-----------------------------------
in this Section 4.1 to the contrary, in no event will (i) the Company be
required to effect more than one registration pursuant to Section 4.1(a) within
any 360-day period, (ii) Perry, its Affiliates and their Permitted Transferees
be entitled to more than five registrations pursuant to Section 4.1(a) or (iii)
the Co-Investors, their Affiliates and their Permitted Transferees be entitled
to more than three registrations pursuant to Section 4.1(a), unless in the case
of each of clauses (ii) and (iii) above, such Requesting Stockholder agrees to
pay all of the costs and expenses of each such additional registration (other
than costs and expenses which relate to or are caused by any registration
effected as a result of Section 4) (unless either (x) a registration so
requested is not effected for a reason not attributable to the Requesting
Stockholder or any of its Affiliates or (y) the amount of Securities sought to
be included by such Requesting Stockholder in such registration is reduced by
more than 25% pursuant to the provisions of Section 4.1 (b)).
(f) First Demand Registration. If no prior registration has been
-------------------------
effected by the Company pursuant to a Registration Request on behalf of Perry,
its Affiliates and their Permitted Transferees under this Section 4.1, and the
Co-Investors, their Affiliates and their Permitted Transferees deliver a
Registration Request to the Company under this Section 4.1, then Perry, its
Affiliates and their Permitted Transferees shall have 45 days after the
Company's and Perry's receipt of the Registration Request previously delivered
by the Co-Investors, their Affiliates and their Permitted Transferees (the
"Advance Demand Notice Period") to elect to
----------------------------
15
deliver a Registration Request; provided, however, that if the Co-Investors'
Registration Request is delivered prior to the fifth anniversary of the Closing
Date, the Advance Demand Notice Period shall expire on the later of 45 days
after the Company's and Perry's receipt of the Registration Request delivered by
the Co-Investors, their Affiliates and their Permitted Transferees and the fifth
anniversary of the Closing Date; provided further, that in order to preserve its
rights under this paragraph (f), Perry shall use all reasonable efforts to file
and have the registration statement relating thereto declared effective by the
later of the fifth anniversary of the Closing Date and 180 days after the
delivery of the Registration Request. If Perry elects to deliver a Registration
Request during the Advance Demand Notice Period, then the Registration Request
previously delivered by the Co-Investors, their Affiliates and their Permitted
Transferees shall be deemed to have been withdrawn and the Co-Investors shall
not be deemed to have exercised a demand registration right and shall have no
rights with respect to Perry's Registration Request other than pursuant to
Section 4.2. If Perry does not elect to deliver a Registration Request during
the Advance Demand Notice Period and the Co-Investors, their Affiliates and
their Permitted Transferees withdraw their Registration Request, (i) the
provisions of this Section 4.1(f) shall remain in full force and effect and (ii)
for purposes of Section 4.1(e), the Company shall be deemed to have effected a
registration on behalf of the Co-Investors, their Affiliates and their Permitted
Transferees, unless such withdrawal was the result of the occurrence of facts or
circumstances which have a material adverse effect on the ability of the Co-
Investors or any underwriter to consummate the sale of the shares covered by the
Co-Investors' Registration Request, which facts and circumstances were unknown
to any of such Co-Investors at the time of making the Registration Request.
4.2 Incidental Registration.
-----------------------
(a) Right to Include Securities. After the first Public Offering,
---------------------------
if the Company at any time proposes or is requested to register any shares of
Common Stock under the Securities Act (except registrations on such form(s)
solely for registration of Common Stock in connection with any employee benefit
plan or dividend reinvestment plan or a merger or consolidation), including
registrations pursuant to Section 4.1(a), whether or not for sale for its own
account, it will each such time as soon as practicable give written notice of
its intention to do so to the Stockholders. Upon the written request (which
request shall specify the total amount of Securities intended to be disposed of
by such Stockholder) of any Stockholder made within 30 days after the receipt of
any such notice (15 days if the Company gives telephonic notice with written
confirmation to follow promptly thereafter, stating that (i) such registration
will be on Form S-3 and (ii) such shorter period of time is required because of
a planned filing date), the Company will use its best efforts to effect the
registration under the Securities Act of all Securities held which the Company
has been so requested to register for sale in the manner initially proposed by
the Company. If the Company thereafter determines for any reason not to register
or to delay registration of the Securities, the Company may, at its election,
give written notice of such determination to the Stockholders and (i) in the
case of a determination not to register, shall be relieved of the obligation to
register such Securities in connection with such registration, without
prejudice, however, subject to any right a Requesting Stockholder may have to
request that such registration be effected as a registration under Section
4.1(a) and (ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Securities of a Stockholder for the same
period as the delay in registration of such other securities. No registration
effected under this Section 4.2(a) shall relieve the Company of any obligation
to effect a registration upon a Registration Request under Section 4.1(a).
16
(b) Priority in Incidental Registration. In a registration
-----------------------------------
pursuant to this Section 4.2 (and not involving a Registration Request)
involving an underwritten offering, if the managing underwriter of such
underwritten offering shall inform the Company and the relevant Stockholders by
letter of its belief that the amount of Securities to be included in such
registration would adversely affect the ability to effect such offering, then
the Company will be required to include in such registration only the amount of
securities which it is so advised should be included in such offering. In such
event: (x) in cases initially involving the registration for sale of Common
Stock for the Company's own account, securities shall be registered in such
offering as follows: (i) first, the shares of Common Stock which the Company
proposes to register, (ii) second, the Securities which have been requested to
be included in such registration pursuant to this Section 4.2 and the securities
of Persons party to the Stockholders' and Registration Rights Agreement which
have been requested to be included in such registration pursuant to the
Stockholders' and Registration Rights Agreement (pro rata based on the amount of
securities sought to be registered by such Persons), (iii) third, the securities
of other Persons entitled to exercise "piggy-back" registration rights pursuant
to contractual commitments of the Company (pro rata based on the amount of
securities sought to be registered by such Persons); and (y) in cases not
initially involving the registration for sale of Common Stock for the Company's
own account, securities shall be registered in such offering as follows: (i)
first, the securities of any Person whose exercise of a "demand" registration
right pursuant to a contractual commitment of the Company is the basis for the
registration, (ii) second, the Securities of Stockholders which have been
requested to be included in such registration pursuant to this Section 4.2 and
the securities of Persons party to the Stockholders' and Registration Rights
Agreement which have been requested to be included in such registration
pursuant to the Stockholders' and Registration Rights Agreement (pro rata based
on the total amount of securities sought to be registered by such Persons),
(iii) third, securities of other Persons entitled to exercise "piggy-back"
registration rights pursuant to contractual commitments (pro rata based on the
amount of securities sought to be registered by such Persons) and (iv) fourth,
the shares of Common Stock which the Company proposes to register.
4.3 Registration Procedures. In connection with the Company's
-----------------------
obligations pursuant to Sections 4.1 and 4.2 hereof, the Company will use its
best efforts to effect such registration and the Company will promptly (subject
to Section 4.1(f)):
(a) prepare and file with the SEC as soon as practicable after
request for registration hereunder the requisite registration statement to
effect such registration and use its best efforts to cause such registration
statement to become effective and to remain continuously effective until the
earlier to occur of (x) 180 days following the date on which such registration
statement is declared effective or (y) the termination of the offering being
made thereunder.
(b) prepare and file with the SEC 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 and to comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such securities have
been sold or such lesser period of time as the Company, any seller of such
securities or any underwriter is required under the Securities Act to deliver a
17
prospectus in accordance with the intended methods of disposition by the sellers
of such securities set forth in such registration statement or supplement to
such prospectus;
(c) furnish to each Stockholder which owns securities covered by
such registration state ment (the "Selling Stockholders") and the managing
--------------------
underwriter, if any, at least one executed original of the registration
statement and such number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the Securities
Act, as may reasonably be requested by such Selling Stockholder;
(d) use its best efforts (i) to register or qualify all
securities covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions where an exemption is not available as the
Selling Stockholders shall reasonably request, (ii) to keep such registration or
qualification in effect for so long as such registration statement remains in
effect and (iii) to take any other action which may be reasonably necessary or
advisable to enable the Selling Stockholders to consummate the disposition in
such jurisdictions of such securities; provided that the Company will not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified, subject itself to taxation in any such jurisdiction or take
any action which would subject it to general service of process in any such
jurisdiction;
(e) notify the Selling Stockholders and the managing underwriter,
if any, promptly, and confirm such advice in writing (i) when a registration
statement, prospectus or any prospectus supplement or post-effective amendment
has been filed, and, with respect to a registration statement or any post-
effective amendment, when the same has become effective, (ii) of any request by
the SEC for amendments or supplements to a registration statement or related
prospectus or for additional information, (iii) of the issuance by the SEC of
any stop order suspending the effectiveness of a registration statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any of the registered securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event or information becoming known which requires the making
of any changes in a registration statement or related prospectus so that such
documents will not contain any 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 not misleading, (vi) of the Company's reasonable
determination that a post-effective amendment to a registration statement would
be appropriate and (vii) if at any time the representations and warranties of
the Company made as contemplated by Section 4.4 cease to be true and correct;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the lifting
of any suspension of the qualification of any of the registered securities for
sale in any jurisdiction, at the earliest possible moment;
(g) upon the occurrence of any event contemplated by clause (e)
(v) above, prepare a supplement or post-effective amendment to the applicable
registration statement or related prospectus or any document incorporated
therein by reference or file any other required
18
document so that, as thereafter delivered to the purchasers of the securities
being sold thereunder, such prospectus will not contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(h) use its best efforts to furnish to the Selling Stockholders a
signed counterpart, addressed to the Selling Stockholders and the underwriters,
if any, of (A) an opinion of counsel for the Company, and (B) a "comfort"
letter, signed by the independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
registration statement, covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and, in the
case of the accountant's letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to underwriters in underwritten
public offerings of securities (and dated the dates such opinions and comfort
letters are customarily dated) and, in the case of the accountant's letter, such
matters, and in the case of the legal opinion, such other legal matters, as the
Selling Stockholders or the underwriters may reasonably request;
(i) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to the Stockholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 promulgated thereunder, no later than 90 days after the end of
any 12-month period beginning after the effective date of a registration
statement pursuant to which Securities are sold, which statement shall cover
such 12-month period;
(j) cooperate with the Selling Stockholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Securities to be sold; and enable such Securities to
be in such denominations and registered in such names as the Selling
Stockholders or the managing underwriters, if any, may request at least two
Business Days prior to any sale of Securities to the underwriters;
(k) use its best efforts to cause the Securities covered by the
applicable registration statement to be registered with or approved by such
other Governmental Authorities as may be necessary to enable the Selling
Stockholder(s) or the underwriters, if any, to consummate the disposition of
such Securities;
(l) cause all Securities covered by the registration statement to
be listed on each securities exchange, if any, on which any securities of the
same class as the Securities are then listed if requested by the managing
underwriters, if any, or the holders of a majority of the Securities covered by
the registration statement and entitled hereunder to be so listed;
(m) cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD") and in the
----
performance of any due diligence investigation by any underwriter (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD);
(n) as soon as practicable prior to the filing of any document
which is to be incorporated by reference into the registration statement or the
prospectus (after initial
19
filing of the registration statement) provide copies of such document to counsel
to the Selling Stockholders and to the managing underwriters, if any, and make
the Company's representatives available for discussion of such document and
consider in good faith making such changes in such document prior to the filing
thereof as counsel for such Selling Stockholders or underwriters may reasonably
request;
(o) provide and cause to be maintained a transfer agent and
registrar for all Securities covered by such registration statement from and
after a date not later than the effective date of such registration statement;
(p) enter into such agreements and take such other actions as the
Selling Stockholders holding 51% of the shares so to be sold shall reasonably
request in order to expedite or facilitate the disposition of such Securities;
and
(q) use its best efforts to provide a CUSIP number for the
Securities, not later than the effective date of the registration statement.
The Company may require each Selling Stockholder to furnish to the
Company such information regarding such Selling Stockholder and the distribution
of such securities as the Company may from time to time reasonably request in
writing in order to comply with the Securities Act.
The Selling Stockholders agree that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
4.3(e) (ii), (iii), (iv), (v) or (vi) hereof, they will forthwith discontinue
disposition pursuant to such registration statement of any Securities covered by
such registration statement or prospectus until their receipt of the copies of
the supplemented or amended prospectus relating to such registration statement
or prospectus or until they are advised in writing by the Company that the use
of the applicable prospectus may be resumed (and the period of such
discontinuance shall be excluded from the calculation of the period specified in
clause (x) of Section 4.3(a)) and, if so directed by the Company, will deliver
to the Company (at the Company's expense, except as otherwise provided in
Section 4.1(e)) all copies, other than permanent file copies then in their
possession, of the prospectus covering such securities in effect at the time of
receipt of such notice. The Selling Stockholders agree to furnish the Company a
signed counterpart, addressed to the Company and the underwriters, if any, of an
opinion of counsel for the Selling Stockholders covering substantially the same
matters with respect to such registration statement (and the prospectus included
therein) as are customarily covered in opinions of selling stockholder's counsel
delivered to the underwriters in underwritten public offerings of securities
(and dated the dates such opinions are customarily dated) and such other legal
matters as the Company or the underwriters may reasonably request.
4.4 Underwritten Offerings.
----------------------
(a) Demand Underwritten Offerings. In any underwritten offering
-----------------------------
pursuant to a registration requested under Section 4.1, the Company will use its
best efforts to enter into an underwriting agreement for such offering with the
underwriters selected by the Requesting Stockholder, such agreement and
underwriters to be reasonably satisfactory in form and substance to the Company,
the Requesting Stockholder and the underwriters and to contain such
representations and warranties by the Company and such other terms as are
generally
20
prevailing in agreements of that type. The Selling Stockholders who hold
Securities to be distributed by such underwriters shall be parties to such
underwriting agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of them and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to their obligations. The Company may, at its option, require that any
or all of the representations and warranties by, and the other agreements on the
part of the Selling Stockholders to and for the benefit of such underwriters
shall also be made to and for the benefit of the Company with due regard to the
amount of Securities being sold by such Selling Stockholder and the nature of
such representations, warranties and agreements and the underwriting.
(b) Incidental Underwritten Offerings. If the Company at any time
---------------------------------
proposes to register any shares of its Common Stock under the Securities Act as
contemplated by Section 4.2 and such shares of Common Stock are to be
distributed by or through one or more underwriters, the Company and the Selling
Stockholders who hold Securities to be distributed by such underwriters in
accordance with Section 4.2 hereof shall be parties to the underwriting
agreement between the Company and such underwriters and may, at their option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of them and that any or
all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement be conditions precedent to their obligations. The
Company may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of the Selling Stockholders
to and for the benefit of such underwriters shall also be made to and for the
benefit of the Company with due regard to the amount of Securities being sold by
such Selling Stockholder and the nature of such representations, warranties and
agreements and the underwriting.
4.5 Preparation; Reasonable Investigation. In connection with the
-------------------------------------
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Selling Stockholders, the
underwriters and their respective counsel and accountants the opportunity (but
such Persons shall not have the obligation) to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
SEC, and, to the extent practicable, each amendment thereof or supplement
thereto, and will give each of them such access to its books and records (to the
extent customarily given to the underwriters of the Company's securities), and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the opinion of the Selling Stockholders' and the
underwriters' respective outside counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
4.6 Limitations, Conditions and Qualifications to Obligations under
---------------------------------------------------------------
Registration Covenants. The obligations of the Company to use its best efforts
----------------------
to cause Securities to be registered under the Securities Act are subject to
each of the following limitations, conditions and qualifications:
(a) The Company shall be entitled to postpone for a reasonable
period of time the filing or effectiveness of, or suspend the rights of Selling
Stockholders to make sales
21
pursuant to, any registration statement otherwise required to be prepared, filed
and made and kept effective by it hereunder (but the duration of such
postponement or suspension may not exceed the earlier to occur of (A) 15 days
after the cessation of the circumstances requiring such postponement or
suspension as described below or (B) 120 days after the date of the
determination of the Board of Directors referred to below, and the duration of
such postponement or suspension shall be excluded from the calculation of the
period specified in clause (x) of Section 4.3(a)) if the Board of Directors of
the Company determines in good faith that the filing or effectiveness of, or
sales pursuant to, such registration statement would impede, delay or interfere
with any financing, offer or sale of securities, acquisition, corporate
reorganization or other significant transaction involving the Company or any of
its affiliates or require disclosure of material information which the Company
has a bona fide business purpose for preserving as confidential. If the Company
shall so delay the filing of a registration statement, it shall, as promptly as
possible, notify the Selling Stockholders of such determination, and the Selling
Stockholders shall have the right (y) in the case of a postponement of the
filing or effectiveness of a registration statement, to withdraw the request for
registration by giving written notice to the Company within 10 days after
receipt of the Company's notice or (z) in the case of a suspension of the right
to make sales, to receive an extension of the registration period equal to the
number of days of the suspension.
(b) The Company shall not be required hereby to include
Securities in a registration statement if, in the written opinion of outside
counsel to the Company of recognized standing in securities law matters, the
beneficial owners of such Securities seeking registration would be free to sell
all of such Securities within the current calendar quarter without registration
under Rule 144 under the Securities Act.
(c) The Company's obligations shall be subject to the obligations
of the Selling Stockholders, which the Selling Stockholders acknowledge, to
furnish all information and materials and to take any and all actions as may be
required under applicable federal and state securities laws and regulations to
permit the Company to comply with all applicable requirements of the SEC and to
obtain any acceleration of the effective date of such registration statement.
(d) The Company shall not be obligated to cause any special audit
to be undertaken in connect.ion with any registration pursuant hereto unless
such audit is requested by the underwriters with respect to such registration.
4.7 Expenses. Except as otherwise provided in Section 4.1(e), the
--------
Company will pay all reasonable out-of-pocket costs and expenses incurred in
connection with each registration of Securities pursuant to this Agreement,
including, without limitation, the reasonable fees and disbursements of a single
firm of outside counsel retained by (i) in the case of a registration pursuant
to Section 4.1, the Requesting Stockholder and (ii) in the case of a
registration pursuant to Section 4.2, the Selling Stockholder(s) which
beneficially owns a majority of the total number of shares being registered by
Selling Stockholders (the "Majority Selling Stockholder"), and any and all
----------------------------
filing fees payable to the SEC, fees with respect to filings required to be made
with stock exchanges, the Nasdaq Stock Market and the NASD, fees and expenses of
compliance with state securities or blue sky laws (including reasonable fees and
disbursements of a single firm of outside counsel for the underwriters or the
Requesting Stockholder or the Majority Selling Stockholder, as the case may be,
in connection with blue sky
22
qualifications of the Securities being registered and determination of its
eligibility for investment under the laws of such jurisdictions as the Selling
Stockholders may designate), printing expenses, fees and disbursements of
counsel and accountants of the Company, including costs associated with comfort
letters, and fees and expenses of other Persons retained by the Company, but
excluding underwriters' expenses (including discounts, commissions or fees of
underwriters and expenses included therein, selling brokers, dealer managers or
similar securities industry professionals relating to the distribution of the
securities being registered or legal expenses of any Person other than the
Company and the Selling Stockholders). The Company shall, in any event in all
cases, pay its internal expenses (including, witnout limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), and the expense of securities law liability insurance fees, if any.
4.8 Participation in Underwritten Registrations. No Stockholder may
-------------------------------------------
participate in any underwritten registration hereunder unless such Stockholder
(a) agrees to sell its securities on the basis provided in and in compliance
with any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and to comply with Rules 10b-6 and l0b-7 under the
Exchange Act, and (b) completes and executes all questionnaires, appropriate and
limited powers of attorney, escrow agreements, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements; provided that all such documents shall be consistent
with the provisions hereof.
4.9 Rule 144. The Company hereby covenants that after it has filed
--------
(and such registration statement has become effective and Common Stock has been
sold pursuant thereto) a registration statement pursuant to the requirements of
Section 12 of the Exchange Act or a registration statement pursuant to the
requirements of the Securities Act in respect of Common Stock, the Company will
file in a timely manner all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
SEC thereunder (or, if the Company is not required to file such reports, it
will, upon the request of any Stockholder, make publicly available other
information so long as necessary to permit sales by such Stockholder under Rule
144 under the Securities Act) and will take such further action as any
Stockholder may reasonably request to the extent required from time to time to
enable such Stockholder to sell Securities under Rule 144 under the Securities
Act.
4.10 Holdback Agreements.
-------------------
(a) Each Stockholder agrees that, with respect to any
registration statement filed by the Company in connection with an underwritten
public offering, it shall not effect any public sale or distribution of equity
securities of the Company during the 30 days prior to or for a period of up to
120 days beginning on the effective date of such registration statement (except
as part of such registration) if and to the extent reasonably requested in
writing (with reasonable prior notice) by the managing underwriter of the
underwritten public offering.
(b) The Company agrees not to effect any primary public sale or
distribution of any equity securities of the Company during the 30 days prior to
and the 90-day period beginning on the effective date of any registration
statement in which any Stockholder is participating in connection with an
underwritten public offering of Securities if and to the extent
23
reasonably requested in writing (with reasonable prior notice) by the managing
underwriter of the underwritten public offering.
4.11 Indemnification.
---------------
(a) Indemnification by the Company. In connection with any
------------------------------
registration pursuant hereto in which Securities are to be disposed of, the
Company shall indemnify and hold harmless, to the full extent permitted by law,
each holder of such Securities to be disposed of and, when applicable, its
officers, directors, stockholders, partners, agents and employees and each
Person who controls such holder (within the meaning of the Securities Act or the
Exchange Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of a material fact contained in
any registration statement, prospectus or preliminary prospectus or 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, including,
without limitation, any loss, claim, damage, liability or expense resulting from
the failure to keep a prospectus current, except insofar as the same (i) are
caused by or contained in any information relating to such holder furnished in
writing to the Company by such holder expressly for use therein or (ii) are
caused by such holder's failure to deliver a copy of the current prospectus
simultaneously with or prior to such sale after the Company has furnished such
holder with a sufficient number of copies of such prospectus correcting such
material misstatement or omission or (iii) arise in respect of any offers to
sell or sales made during any period when a holder is required to discontinue
sales under Section 4.3(e) (and after such holder has received the notice
contemplated by Section 4.3(e)). The Company shall also indemnify underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers and directors and each person
who controls such Persons (within the meaning of the Securities Act) to the same
extent as provided above with respect to the indemnification of the holders of
such Securities to be disposed of, and shall enter into an indemnification
agreement with such Persons containing such terms, if requested.
(b) Indemnification by Stockholders. In connection with each
-------------------------------
registration statement effected pursuant hereto in which Securities are to be
disposed of, each Selling Stockholder shall, severally but not jointly,
indemnify and hold harmless, to the full extent permitted by law, the Company,
the other Selling Stockholder and their respective directors, officers,
stockholders, partners, agents and employees and each Person who controls the
Company and the other Selling Stockholder (within the meaning of the Securities
Act or the Exchange Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue statement of a material fact or any omission
of a material fact required to be stated in such registration statement or
prospectus or preliminary prospectus or necessary to make the statements therein
not misleading, to the extent, but only to the extent, that such untrue
statement or omission relates to such Selling Stockholder and is contained in
any information furnished in writing by such Selling Stockholder or any of its
Affiliates to the Company expressly for inclusion in such registration statement
or prospectus. In no event shall the liability of any Selling Stockholder
hereunder be greater in amount than the dollar amount of the proceeds actually
received by such Selling Stockholder upon the sale of the securities giving rise
to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any Person entitled
--------------------------------------
to indemnification hereunder shall give prompt notice to the indemnifying party
of any claim with
24
respect to which it shall seek indemnification and shall permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any Person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such Person unless (i) the
indemnifying party shall have agreed to pay such fees or expenses, or (ii) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such Person or (iii) in the opinion of
outside counsel to such Person there may be one or more legal defenses available
to such Person which are different from or in addition to those available to the
indemnifying party with respect to such claims (in which case, if the Person
notifies the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party because of a reason
described in clause (iii) above, the indemnifying party shall not have the right
to assume the defense of such claim on behalf of such Person). No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement of any such action 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. No indemnified party shall consent to entry of any judgment
or enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party (or assumed by the indemnified party because of
a reason described in clause (iii) above) without the consent of such
indemnifying party. An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one firm of counsel (and, if necessary, local counsel) for
all parties indemnified by such indemnifying party with respect to such claim,
unless in the written opinion of outside counsel to an indemnified party a
conflict of interest as to the subject matter exists between such indemnified
party and another indemnified party with respect to such claim, in which event
the indemnifying party shall be obligated to pay the fees and expenses of
additional counsel for such indemnified party.
(d) Contribution. If for any reason the indemnification provided
------------
for herein is unavailable to an indemnified party or is insufficient to hold it
harmless as contemplated hereby, then the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations;
provided that in no event shall the liability of any Selling Stockholder for
such contribution and indemnification exceed, in the aggregate, the dollar
amount of the proceeds received by such Selling Stockholder upon the sale of
securities giving rise to such indemnification and contribution obligation.
SECTION 5. MISCELLANEOUS
5.1 Excess Proceeds Sales; FTDA Member Offerings.
--------------------------------------------
(a) Upon Xxxx'x or Fleet's (which shall include for the purposes
of this paragraph Xxxx'x or Fleet's pro rata portion of any similar Transfer by
Xxxxxxxx or its respective Affiliates) or any of its respective Affiliate's
Transfer of any Common Stock to any unaffiliated person, Xxxx or Fleet, as the
case may be, shall pay Perry the Excess Proceeds (defined below), if any, from
such Transfer; provided that Xxxx shall be released from its obligations
pursuant to this
25
Section 5.1(a) at such time as it has paid Perry Excess Proceeds in an amount
equal to $333,333 and Fleet shall be released from its obligations pursuant to
this Section 5.1(a) at such time as it has paid Perry Excess Proceeds in an
amount equal to $166,666. "Excess Proceeds" shall mean the amount equal to (A)
---------------
the gross proceeds of a Transfer by Bain or Fleet (including Xxxxxxxx) or any of
its respective Affiliates of Common Stock to an unaffiliated person less the
out-of-pocket expenses directly related to such Transfer (not including any
taxes associated with the sale or transfer) minus (B) the original amount paid
-----
for such Common Stock by Bain or Fleet, as the case may be, pursuant to a
Subscription Agreement; provided that if such amount is negative, the Excess
Proceeds shall equal zero. Any non-cash proceeds of a Transfer shall be valued
at their fair market value as mutually agreed by Bain or Fleet, as the case may
be, and Perry. Except with respect to a one-time transfer by Fleet to a newly
formed fund controlled by or under common control with Fleet Growth Resources,
Inc. and Xxxxxxxx Partners II, L.P. (which fund shall have investors and shall
engage in investments substantially similar to any of the Co-Investors), in the
event that Bain or Fleet as the case may be, has not fully satisfied its
obligation to pay Perry Excess Proceeds pursuant to this Section 5.1(a) at such
time as such person consummates a Transfer to an Affiliate which in the
aggregate with all other Transfers to Affiliates exceeds 35% of Bain or Fleet's
Common Stock acquired on the Closing Date, Bain or Fleet, as the case may be,
shall pay Perry the full amount of its obligation pursuant to this Section
5.1(a) less any Excess Proceeds previously paid by Bain or Fleet, as the case
may be.
(b) Each of Perry, Xxxx and Fleet (including pro rata
participation by Xxxxxxxx in Xxxx'x or Fleet's obligation in such) agree to
offer and sell 65%, 23.33% and 11.67%, respectively, of the shares of Class A
Common Stock of the Company to be sold pursuant to Sections 4.1 and 4.2 of the
Mutual Support Agreement to the extent that the Company elects not to issue the
shares offered with respect thereto.
5.2 Additional Securities Subject to Agreement. Each Stockholder
------------------------------------------
agrees that any Common Stock or other securities which it shall hereafter
acquire by means of a stock split, stock dividend, distribution or otherwise
(other than pursuant to a Public Offering) shall be subject to the provisions of
this Agreement to the same extent as if held on the date hereof.
5.3 Termination. This Agreement (other than the provisions of
-----------
Sections 3.5, 4 and 5.1) shall terminate, and thereby become null and void, on
the earliest of (i) the date on which Perry and the Co-Investors and their
respective Affiliates do not own in the aggregate at least 35% of the Common
Stock outstanding on a fully diluted basis, (ii) the date on which either Perry
and its Affiliates, on the one hand, or the Co-Investors and their Affiliates,
on the other hand, do not own in the aggregate at least 10% of the Common Stock
on a fully diluted basis or (iii) the ninth anniversary of the date hereof.
5.4 Injunctive Relief. The Stockholders acknowledge and agree that a
-----------------
violation of any of the terms of this Agreement will cause the Stockholders
irreparable injury for which adequate remedy at law is not available.
Accordingly, it is agreed that each Stockholder shall be entitled to an
injunction, restraining order or other equitable relief to prevent breaches of
the provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
26
5.5 Other Stockholders' Agreements. Except as provided in the letter
------------------------------
between Fleet and Bain attached as Exhibit A hereto and the Securityholders' and
Registration Rights Agreement, no Stockholder shall enter into or agree to be
bound by any voting trust with respect to any shares of Common Stock held by it
nor shall any Stockholder enter into any stockholder agreement or other
arrangement of any kind with any Person with respect to Common Stock which is
inconsistent with the provisions of this Agreement or which may impair its
ability to comply with this Agreement, including but not limited to agreements
and arrangements with respect to the acquisition, disposition or voting of
Common Stock inconsistent herewith.
5.6 Amendments. This Agreement may be amended only by a written
----------
instrument signed by each of Perry, so long as it (or its Affiliates) owns
Securities and by Bain, so long as it (or its Affiliates) owns Securities, and
the Company.
5.7 Successors, Assigns and Transferees. The provisions of this
-----------------------------------
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their Permitted Transferees and their respective successors, each of
which Permitted Transferees shall agree in a writing in form and substance
satisfactory to the Company and the owners of a majority of the Class A Common
Stock outstanding and owned by all Stockholders, to become a party hereto and be
bound to the same extent as its transferor hereby, provided that no rights
granted hereunder specifically to Perry and its Affiliates or the Co-Investors
and their Affiliates may be assigned to any Permitted Transferees thereof,
except as otherwise expressly set forth herein, and no Stockholder may assign to
any Permitted Transferee any of its rights hereunder other than in connection
with a Transfer to such Permitted Transferee of Securities in accordance with
the provisions of this Agreement.
5.8 Notices. All notices, requests, demands and other communications
-------
which are required or may be given hereunder shall be in writing and shall be
deemed to have been duly given upon the earlier of delivery if delivered
personally, or upon receipt if sent by registered or certified mail, return
receipt requested, postage prepaid, or on the second next business day after
deposit if sent by recognized overnight delivery service, or upon transmission
if sent by telecopy or facsimile transaction (with request of assurance of
receipt in a manner customary for communications of such type) as follows:
if to Perry or the Company, to:
Xxxxxxx X. Xxxxx
President
Perry Capital Corp.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx
Skadden, Arps, Slate,
Xxxxxxx & Xxxx
000 Xxxx Xxxxxx Xxxxx
00
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
if to the Co-Investors, to:
Xxxx Xxxxxx
Xxxx Capital, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
and
Xxxxx X. Xxxxx
Xxxxxxxx Partners II, L.P.
c/o Fleet Equity Partners
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Fax: (000) 000-0000
and
Xxxxx X. Xxxxx
Fleet Growth Resources, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Fax: (000) 000-0000
with copies to:
Xxxxxxx X. Xxxxxx
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
and
Xxxxxxxxxxx X. Xxxxxx
Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Fax: (000) 000-0000
5.9 Integration. This Agreement and the documents referred to herein
-----------
or delivered pursuant hereto, including the Stock Subscription Agreements,
contain the entire understanding of the parties with respect to the subject
matter hereof and thereof. There are no agreements, representations,
warranties, covenants or undertakings with respect to the subject
28
matter hereof and thereof other than those expressly set forth herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
5.10 Severability. If one or more of the provisions, paragraphs,
------------
words, clauses, phrases or sentences contained herein, or the application
thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision, paragraph, word, clause, phrase or sentence in every other respect
and of the remaining provisions, paragraphs, words, clauses, phrases or
sentences hereof shall not be in any way impaired, it being intended that all
rights, powers and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
5.11 Counterparts. This Agreement may be executed in two or more
------------
counterparts, and by different parties on separate counterparts each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.
5.12 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of Delaware without regard
to the conflicts of law principles thereof. The parties executing this
Agreement hereby agree to submit to the nonexclusive jurisdiction of the federal
and state courts located in the State of Delaware in any action or proceeding
arising out of or relating to this Agreement.
5.13 Confidentiality. Each Stockholder agrees to use, and to cause
---------------
its directors, officers, employees, agents and Affiliates to use, only in a
manner consistent with its status as a Stockholder and not in furtherance of any
other business purpose, any information which it or any of them may receive
from, or at the direction of, the Company or any Subsidiary with respect to the
financial condition or business operations of the Company or any Subsidiary, and
to hold such information in confidence, except for disclosures as required by
law, regulation or legal process or in accordance with the prior written consent
of the Company. The information subject to the restrictions set forth in this
paragraph shall not include, information which (i) becomes generally available
to the public other than as a result of a disclosure by any Stockholder, or any
of its directors, officers, employees, agents or Affiliates (other than the
Company or its Subsidiaries), (ii) was available to a Stockholder on a non-
confidential basis prior to its disclosure or (iii) becomes available to a
Stockholder on a non-confidential basis from a source other than the Company, a
Subsidiary or their representatives provided, that such source is not bound by a
confidentiality agreement with the Company, a Subsidiary or their
representatives.
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PERRY CAPITAL CORP.
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Its: President
PERRY ACQUISITION PARTNERS, L.P.
By: PERRY INVESTORS, L.L.C.,
its general partner
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Its:
---------------------------------
XXXX CAPITAL FUND IV, X.X.
XXXX CAPITAL FUND IV-B, L.P.
INFORMATION PARTNERS CAPITAL
FUND, L.P.
BCIP ASSOCIATES
BCIP TRUST ASSOCIATES, L.P.
By: XXXX CAPITAL, INC., each of their
general partner
By: /s/
--------------------------------------
Its:
---------------------------------
XXXXXXXX STREET PARTNERS
By: /s/
--------------------------------------
Its:
---------------------------------
30
XXXXXXXX PARTNERS II, L.P.
By: SILVERADO II, L.P., its
general partner
By: SILVERADO II CORP., its
general partner
By: /s/
--------------------------------------
Its: President
FLEET GROWTH RESOURCES, INC.
By: /s/
--------------------------------------
Its: President
TURNBERRY PARTNERS, L.P.
By: CHATHAM CAPITAL MANAGEMENT,
INC., its managing general partner
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Its: President
31
