EXHIBIT 10.20
STOCKHOLDER RIGHTS AGREEMENT
THIS STOCKHOLDER RIGHTS AGREEMENT (this "Agreement") is entered into as of
June 17, 1997, by and among FALCON BUILDING PRODUCTS, INC., a Delaware
corporation (the "Company"), EQUITY HOLDINGS LIMITED, an Illinois limited
partnership ("EHL"), FBP Acquisition Corp., Inc., a Delaware corporation
("MergerCo"), INVESTCORP INVESTMENT EQUITY LIMITED, a Cayman Islands corporation
("IIEL"), and the other holders of Class D Common Stock of MergerCo (IIEL and
each such other holder individually a "Class D Stockholder" and collectively the
"Class D Stockholders").
R E C I T A L S
A. The Company and MergerCo have entered into an Agreement and Plan of
Merger Agreement (the "Merger Agreement"), dated as of March 20, 1997, pursuant
to which MergerCo will be merged with and into the Company upon the terms and
conditions set forth therein (the "Merger") and, among other things, the shares
of Class D Common Stock of MergerCo held by the Class D Stockholders will be
converted into shares of Class D Stock of the Company.
B. Pursuant to the Merger Agreement, EHL will, as of immediately after
the closing of the Merger, retain ownership of 861,683 shares of Class A Common
Stock of the Company or such lesser number of such shares as is determined by
the proration procedures described in Section 1.6 of the Merger Agreement (the
"EHL Shares").
C. This Agreement is being entered into pursuant to the Stockholder
Voting Agreement which was entered into by EHL, the Company and MergerCo
concurrently with the Merger Agreement.
A G R E E M E N T
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. A Person will be deemed to control a
corporation if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities, by contract or
otherwise.
"CERTIFICATE OF INCORPORATION" means the Restated Certificate of
Incorporation of the Company in effect as of immediately following the closing
of the Merger which shall be in the form
attached hereto as Exhibit A, as such Certificate may thereafter from
time to time be amended in accordance with applicable law and such
Certificate.
"COMMISSION" means the U.S. Securities and Exchange Commission and any
successor federal agency having similar powers.
"EXCHANGE ACT" shall mean the Securities and Exchange Act of 1934, as
amended from time to time, including the various rules and regulations
promulgated by the Commission thereunder.
"INITIAL PUBLIC OFFERING" shall have the meaning ascribed to that term
in Article IV, Section 1 of the Certificate of Incorporation.
"INVESTCORP INVESTORS" means Investcorp Bank E.C. and its Affiliates
and any other investor with whom Investcorp Bank E.C. or any Affiliate thereof
has an administrative relationship.
"PERMITTED TRANSFEREE" shall mean (i) a Person acquiring EHL Shares
pursuant to Xxxxxxx 0, 0 xx 0 xxxxxx, (xx) a Person acquiring EHL Shares which
have previously been the subject of a Section 2(d) sale or (iii) a Person that
is an Affiliate of either EHL or a Permitted Transferee; PROVIDED, HOWEVER,
that: (A) EHL may distribute the EHL Shares to the direct and indirect partners
of EHL and such partners may contribute EHL Shares to Affiliates of such
partners (each of whom shall be a Permitted Transferee), PROVIDED that the
number of Persons to whom EHL Shares may be transferred pursuant to this clause
(A) shall not exceed 10; (B) any transfer to a Permitted Transferee other than
pursuant to clause (A) must be of at least 100,000 EHL Shares (as adjusted for
stock splits, reverse stock splits and stock dividends of 2% or more with an
effective date after the closing date of the Merger), except that where EHL or a
Permitted Transferee owns less than 100,000 EHL Shares (as so adjusted) a
transfer to a Permitted Transferee of all EHL Shares so held may be made; and
(C) no transfer to a Permitted Transferee will be effective unless and until
such Permitted Transferee has agreed in writing to be bound by this Agreement
with respect to the EHL Shares to be so transferred.
"PERSON" means an individual, limited or general partnership, joint
venture, limited liability company, corporation, trust, unincorporated
organization or a government or any department or agency thereof.
"REGISTRABLE SECURITIES", as of any date of determination, means the
EHL Shares then held by EHL and any Permitted Transferee; PROVIDED, HOWEVER,
that any particular Registrable Securities shall cease to be such when (i) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities have been disposed
of in accordance with such registration statement, (ii) they shall have ceased
to be outstanding, or (iii) with respect to any Holder (as defined in Section
5), all such securities beneficially held by such Holder and its Affiliates may
be sold in compliance with Rule 144 under the Securities Act within a three
month period.
"REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with its obligations under Section 5 hereof
including, without limitation, all Commission and any stock exchange
registration, listing, filing or NASD fees, all fees and expenses
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of complying with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications), all word processing, duplicating and printing expenses, all
messenger and delivery expenses, the fees and disbursements of counsel for
the Company and of its independent public accountants, including the expenses
of any special audits or "comfort" letters required by or incident to such
performance and compliance, and any fees and disbursements of underwriters
customarily paid by issuers or sellers of securities and the reasonable fees
and expenses of any special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and fees
of any counsel employed by any Holder (as defined in Section 5 hereof) other
than in-house counsel of the Company and outside counsel employed by the
Company for purposes of the registration.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, including the various rules and regulations promulgated by the
Commission thereunder.
Certain other terms are defined elsewhere in this Agreement.
SECTION 2. RIGHT OF FIRST OFFER ON EHL SHARES.
(a) In the event that EHL or any Permitted Transferee holding EHL Shares
proposes to sell any EHL Shares (the "Initiating Holder") to any Person, such
Initiating Holder shall furnish to the Company and to IIEL a written notice
specifying the number of such EHL Shares proposed to be sold, the proposed sale
price and all other material terms and conditions of the proposed sale (a
"Section 2 Sale Notice").
(b) IIEL and the Company shall each then have the irrevocable option,
exercisable by written notice to the Initiating Holder within 20 days after
receipt of a Section 2 Sale Notice, to purchase all (but not less than all) of
the EHL Shares covered by such Notice at the same price and on the same terms
and conditions as contained in such Notice (the "Option"). As between IIEL and
the Company, IIEL will have first priority with respect to the Option, and the
EHL Shares covered by such Option may be allocated between IIEL and the Company
in any amounts mutually agreed upon by IIEL and the Company.
(c) In the event that either IIEL or the Company elects to exercise the
Option (either or both, as applicable, an "Electing Offeree"), the closing of
the purchase or purchases pursuant to the exercise of such Option shall occur
at the offices of the Company on the date specified in the notice of
exercise, which date shall not be later than 30 days after receipt by the
Initiating Holder of such notice of exercise (or such earlier date, if any,
mutually agreed upon by the Initiating Holder and the Electing Offeree). At
such closing, (i) the Initiating Holder shall deliver to the Electing Offeree
the stock certificate or certificates evidencing such EHL Shares in valid
form for transfer with appropriate and duly executed assignments, stock
powers or endorsements, as the case may be, bearing any necessary documentary
stamps and accompanied by such certificates of authority, consents to
transfer or other instruments or evidences of good title of the Initiating
Holder to such Shares, free and clear of any and all claims, liens, pledges
and encumbrances, as may reasonably be requested by such Electing Offerees,
and (ii) each Electing Offeree shall pay to the Initiating Holder the
applicable purchase price.
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(d) If the Option is not validly exercised within the applicable option
period specified in Section 2(b) above or if prior to the expiration of such
option period each of IIEL and the Company shall have given the Initiating
Holder written notice that it will not exercise the Option, then the Initiating
Holder shall be free, for a period of 90 days beginning on earlier of the day
after the expiration of such option period or the date on which the Initiating
Holder shall have received such notices of non-election, as applicable, to sell
such EHL Shares to any other purchaser or purchasers at prices, terms and
conditions no less favorable to the Initiating Holder than those contained in
the Section 2 Sale Notice; PROVIDED that (i) any such other purchaser or
purchasers agree in writing to be bound by all provisions of this Agreement
applicable to the Initiating Holder to the extent such provisions by their terms
continue in effect; (ii) the minimum number of such EHL Shares that may be so
sold to any such purchaser shall be 100,000 EHL Shares (as adjusted for stock
splits, reverse stock splits and stock dividends of 2% or more with an effective
date after the closing date of the Merger); and (iii) in no event shall the
total number of Persons holding EHL Shares as a result of sales pursuant to this
Section 2(d) exceed 5 Persons.
(e) No transfer, assignment or other disposition of any EHL Shares
(including without limitation any transfer, assignment or other disposition by
operation of law) may be made by EHL or a Permitted Transferee, other than a
transfer by EHL to a Permitted Transferee or by a Permitted Transferee to
another Permitted Transferee; PROVIDED that, subject to the prior written
consent of IIEL (which consent shall not be unreasonably withheld), EHL or a
Permitted Transferee may pledge EHL Shares in a bona fide credit transaction
with an unaffiliated financial institution.
(f) Any EHL Shares sold pursuant to Section 2(d) shall upon closing of
such sale no longer be subject to the provisions of Section 2(a), (b), (c), (d)
and (e) hereof.
(g) The transfer restrictions imposed on EHL Shares by this Section 2 are
in addition to any restrictions applicable to such EHL Shares which are
contained in the Company's Certificate of Incorporation.
(h) The provisions of this Section 2 do not apply to any sale pursuant to
Section 4 or Section 3 hereof.
(i) The provisions of this Section 2 shall expire and be of no further
force and effect at the earlier of (x) the Initial Public Offering or (y) the
closing of a Section 4 Transaction (as defined in Section 4).
SECTION 3. RIGHT TO PARTICIPATE IN SALE.
(a) In the event that, during the period beginning immediately after the
closing of the Merger and ending upon the Initial Public Offering, one or
more Class D Stockholders propose to engage in a sale or series of related
sales of equity interests in the Company which is not a "Tag-Along Transfer"
within the meaning of Article IV of the Certificate of Incorporation, but
such sale would result in a transfer of a majority of the voting power of the
Company (a "Section 3 Sale") to a purchaser who is not an Investcorp Investor
(a "Section 3 Purchaser"), then EHL and any Permitted Transferee holding EHL
Shares shall be given the right to participate in such Section 3 Sale at the
same price and on the same terms and conditions as the Class D Stockholders
of the Company participating in such transaction, up to the Pro Rata EHL
Share Amount (as defined below)
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applicable to EHL and each such Permitted Transferee. As used in this
Section 3, "Pro Rata EHL Share Amount" applicable to a holder of EHL Shares
shall mean the number of whole EHL Shares (disregarding any fractional share)
derived by multiplying (x) the total number of EHL Shares held by such holder
by (y) a fraction, the numerator of which is the total number of outstanding
shares of capital stock of the Company (other than EHL Shares) to be included
in the Section 3 Sale and the denominator of which is the total number of
outstanding shares of capital stock held by stockholders of any class of
capital stock (other than holders of EHL Shares) who are participating as
sellers in the Section 3 Sale.
(b) The Class D Stockholders proposing to engage in a Section 3 Sale shall
notify, or cause to be notified, EHL and each Permitted Transferee holding EHL
Shares in writing of each Section 3 Sale at least 30 days prior to the scheduled
closing of the Section 3 Sale. Such notice (the "Section 3 Sale Notice") shall
set forth the following: (i) the total number of shares of Company capital
stock, by class, to be included in the Section 3 Sale, (ii) the applicable Pro
Rata EHL Share Amount for each holder of EHL Shares then having rights under
this Section 3 and the basis on which each such Amounts have been calculated,
(iii) the consideration per share to be paid by the Section 3 Purchaser, (iv) a
summary of other material terms and conditions of the Section 3 Sale and an
estimate of anticipated expenses, (v) that the Section 3 Purchaser has been
informed of the participation rights under this Section 3 and has agreed to
purchase EHL Shares up to the applicable Pro Rata EHL Share Amounts to the
extent holders of such EHL Shares elect to participate and (vi) the name and
address of the person to whom such holders of EHL Shares should direct their
election notices as provided in Section 3(c) below.
(c) (i) The participation rights granted pursuant to this Section 3
may be exercised by holders of such rights by delivery of a written notice (the
"Section 3 Election Notice") to the person designated in the Section 3 Sale
Notice within 15 days following receipt of such Notice (each holder of such
participation rights who so elects is referred to herein as an "Electing
Holder"). The Section 3 Election Notice shall state either (A) that the
Electing Holder elects to include in such sale its full Pro Rata EHL Share
Amount or (B) if such Electing Holder elects to include in such Sale a lesser
number of shares, such lesser number of shares (the amount so included, the
"Included EHL Shares").
(ii) The Section 3 Election Notice shall constitute a binding
agreement by the applicable Electing Holder to sell the Included EHL Shares
in the Section 3 Sale on the terms and conditions specified in the Section 3
Sale Notice. In addition, by delivering the Section 3 Election Notice, such
Electing Holder agrees to the following: (A) prior to the closing of any
such Sale, to execute and deliver (or cause to be executed and delivered) any
purchase agreement or other documentation required by the Section 3 Purchaser
to consummate the Sale which purchase agreement and other documentation shall
be on terms no less favorable in respect of any material term to such
Electing Holder than those executed by the other Company stockholders
participating in such Sale PROVIDED that no Electing Holder shall be required
to make any representation or warranty or undertake any liability in any such
purchase agreement or otherwise in connection with a Section 3 Sale other
than representations and warranties as to its ownership and authority to
transfer the Included EHL Shares, free and clear of all liens and
encumbrances and in compliance with all applicable laws and (B) at the
closing of any such Sale, deliver to the Section 3 Purchaser the
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certificate or certificates representing the Included EHL Shares, duly
endorsed for transfer with signatures guaranteed, against receipt of the
purchase price therefor.
(iii) If no Section 3 Election Notice is received by the person
designated in the Section 3 Sale Notice to receive such Election Notice within
the time period specified in Section 3(c)(i) above, the other selling
stockholders participating in the Section 3 Sale shall have the right for a
120-day period to sell to the Section 3 Purchaser up to the number of shares
designated as proposed for sale in the Section 3 Sale Notice on terms and
conditions no more favorable in any material respect to such stockholders than
those stated in such Notice.
(d) Each holder of Included Shares shall be required to bear its PRO RATA
share, based on the number of total shares included in such Sale by all Company
stockholders, of the expenses of the transaction, including without limitation
legal, accounting and investment banking fees and expenses.
(e) The provisions of this Section 3 shall not apply to any EHL Shares
that have previously been the subject of a completed Section 3 Sale nor shall
the holder of any such EHL Shares have the right, pursuant to this Agreement, to
participate in any subsequent Section 3 Sale.
(f) The provisions of this Section 3 shall not apply to sales by a Class D
Stockholder to any Affiliate of any Class D Stockholder or to any Investcorp
Investor.
SECTION 4. RIGHT TO CAUSE SALE.
(a) If, after the Initial Public Offering, the Investcorp Investors
determine to sell, in one transaction or a series of related transactions, 85%
or more in the aggregate of their respective equity interests in the Company (a
"Section 4 Transaction") to a purchaser who is not an Investcorp Investor or to
a group of purchasers who are not Investcorp Investors (the "Section 4
Purchaser"), then IIEL shall have the right to in its sole discretion require
EHL and any Person who became a Permitted Transferee prior to the Initial Public
Offering, to the extent either of them then beneficially own EHL Shares, to sell
all of their remaining equity interests in the Company as a part of the Section
4 Transaction at the same price and on the same terms and conditions as are
applicable to the other Investcorp Investors participating in such Transaction;
PROVIDED that no Holder of EHL Shares shall be required to make any
representation or warranty or undertake any liability in connection with such
Section 4 Transaction other than representations and warranties as to its
ownership and authority to transfer the EHL Shares, free and clear of all liens
and encumbrances and in compliance with all applicable laws; and PROVIDED
FURTHER that such right to require EHL and any such Permitted Transferee to sell
their remaining equity interests in the Company shall be available only so long
as the equity interests in the Company beneficially held by Investcorp Investors
represent an aggregate equity position in the Company equal to or
greater than 50% of the aggregate equity position that Investcorp Investors
beneficially held as of immediately after the closing of the Merger.
(b) In the event that both Sections 3 and 4 apply to a single transaction
or to a series of related transactions, the rights set forth in this Section 4
will have priority over the rights set forth in Section 3 above, and the rights
set forth in Section 3 above will become exercisable by EHL (and Permitted
Transferees, if any) following a determination by IIEL not to exercise its right
under this Section 4. IIEL will provide written notice to EHL and each
Permitted Transferee of such determination at least 15 days prior to the
scheduled closing of the Transaction.
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(c) In the event that IIEL exercises its right to require EHL and any
Permitted Transferee to sell their remaining equity interests in the Company in
a Section 4 Transaction, IIEL will cause EHL and any such Permitted Transferee
to receive written notice thereof (a "Section 4 Notice") not less than 20 days
prior to the scheduled closing date of the Section 4 Transaction. The Section 4
Notice shall state the following: (1) the name and address of the Section 4
Purchaser, (ii) the number of shares of each class of capital stock to be sold
in the Section 4 Transaction, (iii) the amount and form of consideration to be
paid for such shares, (iv) a summary of the material terms and conditions of the
Section 4 Transaction, (v) that the conditions to the right of IIEL to require
the sale of such remaining equity interests in the Company in the Section 4
Transaction have been satisfied, (vi) that the Section 4 Purchaser has agreed to
purchase such remaining equity interests in the Company as a part of the Section
4 Transaction, and (vii) the name and address of the person to whom the holders
of such remaining interests should send their stock certificates and with whom
the holders of such remaining interests should otherwise communicate with
respect to the Section 4 Transaction. Upon receipt of a Xxxxxxx 0 Xxxxxx, XXX
and each such Permitted Transferee shall take all steps necessary to facilitate
the prompt closing of the Section 4 Transaction.
(d) Without limiting any rights or remedies available to any party hereto
against EHL and any such Permitted Transferee for any breach of this Section 4,
it is expressly agreed that the Section 4 Purchaser and the Company shall each
have the right to enforce the rights of IIEL under this Section 4 and to seek
any available remedies against EHL and any such Permitted Transferee for breach
of this Section 4.
SECTION 5. REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION.
(i) WRITTEN REQUEST. If, prior to the date which is 5 years
from the closing of the Merger, the Initial Public Offering has not occurred,
then, at any time after such fifth anniversary until such time as the Initial
Public Offering has occurred, the holders of Registrable Securities (each for
purposes of this Section 5, a "Holder," and collectively the "Holders")
representing at least 75% of the EHL Shares shall have the right, exercisable
only once, to require the Company to register under the Securities Act such
number of Registrable Securities as such Holders shall designate for sale in a
written request (the "Demand Registration Notice") to the Company (the "Demand
Registration").
(ii) DEMAND REGISTRATION.
(A) If the Demand Registration is requested pursuant to
Section 5(a)(i) hereof, the Company agrees to use its reasonable best
efforts to cause to be filed at the earliest possible date, and in no
event later than one-hundred twenty (120) days from the receipt of such
request, and declared effective a registration statement providing for
the sale by the Holders of such Registrable Securities as are designated
for sale in the Demand Registration Notice on an appropriate
registration form pursuant to the Securities Act. A registration shall
not count as a Demand Registration until it has become effective;
PROVIDED that all of the other obligations of the Company to the Holders
with respect to such Demand Registration will remain in effect whether
or not such registration is counted as the Demand Registration; and
PROVIDED FURTHER that, after filing of a registration statement pursuant
to a
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Demand Registration Notice until such time as such registration
statement becomes effective, the Holders of a majority of the
Registrable Securities included therein may by written notice to the
Company request that such registration statement be withdrawn, and the
Company shall thereafter promptly notify the appropriate staff of the
Commission that such registration statement (and any request for
acceleration of effectiveness thereof) are being withdrawn, but if such
Holders elect to cause such a withdrawal then the Holders of Registrable
Securities shall not be entitled to initiate another Demand Registration
until 6 months after such withdrawal and any subsequently filed
registration statement pursuant to a Demand Registration will count as
the Demand Registration if the reason it does not become effective is
due to another withdrawal request by Holders.
(B) The Company shall be entitled to postpone for a reasonable
period of time (not exceeding twelve (12) months) the filing of a
registration statement pursuant to the Demand Registration if, within
ten (10) business days after the Company receives the Demand
Registration Notice, the Company shall furnish to the Holders making
such request a certificate signed by the President of the Company
stating that in the good faith belief of a majority of the Board of
Directors, it would be in the best interests of the Company and its
stockholders to defer the filing required hereunder. Such certificate
shall summarize the reasons for such good faith belief, and such Holders
shall be entitled to discuss the reasons given with the entire Board of
Directors.
(C) The Company will not, without the written consent of a
majority in interest of the Holders, include in any Demand Registration
securities for sale for the account of any Person other than the
Holders, except that the Company may include securities held by other
holders whose contractual registration rights (now existing or hereafter
granted) give them the right to be so included ("Other Rights Holders").
(D) In the event that a Demand Registration is proposed by the
Holders to be effected through an underwritten offering (x) the
provisions of Section 5(b)(i)(A) or (B), as applicable, shall govern
such Demand Registration, (y) (I) the Company shall have the right in
its sole discretion to select the managing underwriter if 50% or more of
the shares to be included in such offering will be sold for the account
the Company and (II) in connection with any other Demand Registration
which is to be an underwritten offering, the holders of a majority of the
shares to be included therein pursuant to contractual registration rights
(now existing or hereafter granted) shall have the right to select the
managing underwriter and, in the absence of such a majority designation,
the managing underwriter will be selected by the Company subject to the
consent of the Holders of a majority of the Registrable Securities to be
included therein, which consent will not be unreasonably withheld; and
(z) the Company shall make available its senior management to provide
reasonable and customary assistance to the underwriters in connection
with the marketing of the securities included therein.
(b) COMPANY REGISTRATION.
(i) As long as EHL and Permitted Transferees, in the
aggregate, beneficially own Registrable Securities comprising at least
two percent (2%) of the outstanding equity securities of the Company, if
the Company proposes to file a registration statement with respect to
equity securities of the Company (other than a registration statement on
Form S-8 or S-4 or comparable successor
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forms or a registration statement relating to a dividend reinvestment
plan), which is available for use for Registrable Securities, under the
Securities Act, then the Company shall give written notice of such
proposed filing to each Holder at least 30 days before the anticipated
filing date of such registration statement, and such notice shall offer
each Holder the opportunity to include in such registration statement
the Registrable Securities then owned by such Holder, as such Holder may
request in writing within 15 days after receipt of the Company's notice
(which request shall specify the number of Registrable Securities to be
included in such registration statement and the intended method of
disposition). The Company shall include in any such registration
statement all such Registrable Securities requested to be included.
Notwithstanding the foregoing:
(A) if (x) the registration statement relates to an
underwritten offering which includes equity securities of the Company to
be offered and sold for the account of the Company and (y) the managing
underwriter of any such offering advises the Company in writing that the
total number of shares which the Company, the Holders and the Other
Rights Holders intend to include in such offering is sufficiently large
to affect materially and adversely the ability of such underwriter to
complete successfully an offering that does not significantly and
adversely impact the market price of the equity securities being
offered, then the number of Registrable Securities to be included in
such registration statement and offering for the account of the Holders
shall be reduced, PRO RATA with the number of shares to be so included
for the account of the Other Rights Holders, so that the aggregate
amount of shares included in such registration statement and offering
for the account of Holders and the Other Rights Holders does not exceed
the amount that such managing underwriter determines in good faith can
be sold in such offering without materially and adversely affecting the
ability of such managing underwriter to complete successfully such
offering without significantly and adversely affecting the market price
of the equity securities being offered; and
(B) if (x) the registration statement relates to an
underwritten offering which does not include equity securities of the
Company to be sold for the account of the Company and (y) the managing
underwriter advises the Holders and the Other Rights Holders who have
requested that shares be included therein that the total number of shares
which the Holders and the Other Rights Holders intend to include in such
offering is sufficiently large to affect materially and adversely the
ability of such underwriter to complete successfully an offering that
does not significantly and adversely affect the market price of the equity
securities being offered, then the number of Registrable Securities to be
included in such registration statement and offering for the account of
the Holders shall be reduced, PRO RATA with the number of shares to be so
included for the account of the Other Rights Holders, so that the
aggregate amount of shares included in such registration statement and
offering for the account of Holders and the Other Rights Holders in the
aggregate does not exceed the amount that such managing underwriters
determine in good faith can be sold in such offering without materially
and adversely affecting the ability of such managing underwriter to
complete successfully such offering without significantly and adversely
affecting the market price of the equity securities being offered.
(ii) The Company may require each Holder to furnish to the
Company information regarding such Holder and the disposition of such Holder's
Registrable Securities, and Holders shall
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furnish such information to the Company and any other information as the
Company may reasonably request.
(iii) In connection with any registration pursuant to this Section
5(b) which relates to a proposed underwritten offering which includes equity
securities of the Company to be sold for the account of the Company, the Company
shall have the right in its sole discretion to select the managing underwriter.
In connection with any other registration pursuant to this Section 5(b) which
relates to a proposed underwritten offering, holders of a majority of the shares
to be included therein pursuant to contractual registration rights (now existing
or hereafter granted) shall have the right to select the managing underwriter
and, in the absence of such a majority designation, the managing underwriter
will be selected by the Company.
(c) REGISTRATION PROCEDURES. If and whenever the Company is required to
effect the registration of any Registrable Securities under the Securities Act
as provided in Section 5(a) or (b) hereof, the Company will as expeditiously as
possible:
(i)(A) prepare and file with the Commission a registration
statement with respect to such Registrable Securities, (B) promptly respond to
all comments received with respect to such registration statement and make and
file all amendments thereto deemed necessary by the Company's legal counsel, and
(C) thereafter use its reasonable best efforts to cause such registration
statement to become effective; PROVIDED, HOWEVER, that the Company shall not be
required to cause such registration statement to become effective if the
Company's legal counsel delivers a reasoned written opinion to the Company that
it is likely that the Commission will commence proceedings either to issue an
order under Section 8(b) of the Act refusing to permit such registration
statement to become effective or to issue a stop order under Section 8(d) of the
Act suspending the effectiveness of such registration statement;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
accurate and effective and to comply with the provisions of the Act with
respect to the disposition of all Registrable Securities and other securities
covered by such registration statement until the earlier of such time as all
of such Registrable Securities have been disposed of by the Holder or Holders
thereof set forth in such registration statement or for the longer of (A)
nine months or (B) if the Company is eligible to conduct a continuous
secondary offering pursuant to Rule 415 under the Act, two years; and will
furnish to each such Holder at least 2 business days prior to the filing
thereof a copy of any amendment or supplement to such registration statement
or prospectus and shall not file any such amendment or supplement to which
any such Holder shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with the
requirements of the Act or of the rules or regulations thereunder;
(iii) furnish to each Holder of such Registrable Securities such
number of conformed copies of such registration statement and of each such
amendment thereof and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Act, such documents, if any,
incorporated by
10
reference in such registration statement or prospectus, and such other
documents as such seller may reasonably request;
(iv) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each Holder shall
reasonably request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and do any and all other
acts and things that may be necessary or advisable to enable such Holder to
consummate the disposition in such jurisdictions of its Registrable Securities
covered by such registration statement, except that the Company shall not for
any such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not but for the requirements of
this subdivision (iv) be obligated to be so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of process
in any such jurisdiction;
(v) if such registration statement relates to an underwritten
written offering, obtain and furnish to each Holder a signed counterpart,
addressed to such Holder, of the legal opinions and accountants' comfort letters
which are to be delivered to the underwriters;
(vi) promptly notify each Holder of Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and the Company shall promptly prepare a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(vii) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securities holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first month of the first fiscal quarter after the
effective date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder;
(viii) if the Common Stock of the Company is listed on a national
securities exchange or quoted on NASDAQ, use its best efforts to comply with the
requirements of such exchange or NASDAQ to include shares of Registrable
Securities covered by such registration statement for listing on each such
securities exchange or for quotation on NASDAQ.
(ix) if requested by Holder or the managing underwriters retained
in the case of a Demand Registration, and subject to the reasonable judgment of
the Company and its counsel and to applicable law, promptly include in a
prospectus supplement or post-effective amendment such information concerning
Holder, Holder's Registrable Securities covered thereby and/or the intended
method of distribution of such Registrable Securities which is furnished to the
Company by Holder
11
or in writing and expressly for use in the prospectus, and
promptly make all required filings of such prospectus supplement or
post-effective amendment; and
(x) make available, upon reasonable notice and during business
hours, for inspection by Holder, any underwriters participating in any
disposition pursuant to such registration statement (in the case of a Demand
Registration only), and any attorney, accountant or other agent retained by
Holder, if any, or such underwriters, pertinent financial and other records,
corporate documents and properties of the Company as shall be reasonably
necessary to enable them to exercise their due diligence responsibility.
The Company may require each Holder of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such Holder and the distribution of such securities as the Company may from time
to time reasonably request in writing and as shall be required by law or by the
Commission in connection therewith.
(d) UNDERWRITING AGREEMENT. If requested by the underwriters for any
underwritten offering of Registrable Securities on behalf of Holders pursuant
to a registration requested under Section 5(b) hereof, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to contain representations and warranties by the Company and other
terms and provisions not inconsistent with this Section 5 as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities to the effect and to the extent
provided in Section 5(g) hereof, and the Company will cooperate with such
Holders to the end that the conditions precedent to the obligations of such
Holders under such underwriting agreement shall not include conditions that
are not customary in underwriting agreements with respect to secondary
distributions and shall be otherwise satisfactory to such Holders. Holders
on whose behalf shares are to be distributed by such underwriters shall be
parties to any such underwriting agreement and 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 such Holders. Such Holders shall not be required by the Company
to make any representations or warranties to or agreements with the Company
or the underwriters other than reasonable representations, warranties or
agreements regarding such Holder, such Holders' Registrable Securities and
such Holders' intended method or methods of disposition and any other
representation required by law.
(e) LOCK-UP. EHL and each Permitted Transferee shall, if and to the
extent requested in writing by the managing underwriter of the Initial Public
Offering, not sell or transfer (other than as part of such Offering) any equity
securities of the Company or any securities convertible into, or exercisable or
exchangeable for, such equity securities within the period of 180 days after the
effective date of the registration statement relating to such Offering or such
shorter period as may be acceptable to such managing underwriter; PROVIDED that,
if any selling stockholders are participating in the Initial Public Offering,
the foregoing obligation is conditioned on EHL and each such Permitted
Transferee, to the extent they are Holders of Registrable Securities, being
given the opportunity to participate in the registration relating to the Initial
Public Offering pursuant to and subject to the limitations contained in Section
5(a) or 5(b) hereof, as applicable.
12
(f) REGISTRATION EXPENSES. The Company agrees to pay, in connection with
each registration of Registrable Securities requested pursuant to Section 5(a)
or 5(b) hereof, all Registration Expenses.
(g) INDEMNIFICATION AND CONTRIBUTION.
(i) INDEMNIFICATION BY COMPANY. The Company agrees to
indemnify, to the full extent permitted by law, each Holder, each of its
officers, directors, employees and partners, and each Person who controls
such Holder within the meaning of Section 15 of the Securities Act and
Section 20(a) of the Exchange Act (each a "Stockholder Indemnified Party")
against any and all losses, claims, damages, liabilities or expenses, joint
or several (collectively, "Damages") to which they or any of them may become
subject: (i) under the Securities Act, the Exchange Act, or otherwise,
insofar as such Damages (or actions in respect thereof) arise out of or are
based upon any untrue or alleged untrue statement of a material fact
contained in any registration statement, prospectus, preliminary prospectus
or any amendment to any of the foregoing, or arise out of or are based upon
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading;
or (ii) as a result of or in connection with any violation of applicable
Federal, state or foreign laws or regulations (collectively, "Laws") by the
Company (other than as a result of any act committed by or omission of a
Stockholder Indemnified Party without the Company's approval) or any of the
Company's employees, officers or directors in connection with any such
registration; PROVIDED, HOWEVER, that the Company will not be liable if any
such Damages arise out of or are based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such Stockholder Indemnified Party in a signed
document stating that such information is specifically for use therein;
PROVIDED, FURTHER, that the foregoing indemnity is subject to the condition
that, insofar as it related to any untrue statement, alleged untrue
statement, omission or alleged omission made in a preliminary prospectus but
eliminated or remedied in the final prospectus (filed pursuant to Rule 424(b)
under the Securities Act), such indemnity shall not inure to the benefit of
the Holders from whom the Person asserting any Damages purchased the
Registrable Securities which are the subject thereof, if copies of such final
prospectus were delivered to such Holder on a timely basis and such Holder
did not deliver to such Person the final prospectus with or prior to the
written confirmation for the sale of such Registrable Securities to such
Person. In connection with an underwritten offering, the Company will
indemnify the underwriters thereof to the same extent as provided above with
respect to the indemnification of Stockholder Indemnified Parties and use
their reasonable best efforts to obtain a reciprocal and mutual indemnity
from the underwriters. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Stockholder
Indemnified Party and shall survive any transfer by the same of the
Registrable Securities of the Holders.
(ii) INDEMNIFICATION BY HOLDERS. Each Holder will furnish to the
Company in writing such information and affidavits with respect to such Holder
as the Company reasonably requests for use in connection with any registration
statement or prospectus to be filed or used under this Agreement and each of
them agrees to indemnify and hold harmless to the fullest extent permitted by
law, the Company, each person who signed the registration statement, and each
Person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a)
13
of the Exchange Act (each, a "Company Indemnified Party" and, collectively
with Stockholder Indemnified Parties, the "Indemnified Parties") against joint
or several Damages to which they or any of them may become subject: (i) under
the Securities Act, the Exchange Act or otherwise, insofar as such Damages
(or actions in respect thereof) arise out of or are based upon any untrue or
alleged untrue statement of a material fact contained in any registration
statement, prospectus, preliminary prospectus or any amendment thereof or
supplement thereto, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any Damages arise out of or are based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
information furnished in writing by a Holder to the Company in a signed
document stating that such information is specifically for use therein; or (ii)
as a result of or in connection with any violation of applicable Laws by a
Holder (other than as a result of any act committed by or omission of a Company
Indemnified Party) or any general or limited partners, employees, officers or
directors of such Holder in connection with any such registration. This
indemnity will be in addition to any liability which a Holder may otherwise
have, including any under this Agreement. Notwithstanding the foregoing, the
liability of a Holder, except for any liability resulting from the willful
misconduct or intentional action of such Holder, shall not exceed an amount
equal to the proceeds realized by such Holder of Registrable Securities sold as
contemplated herein.
(iii) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after
receipt by an Indemnified Party under subsection (a) or (b) above of notice
of the commencement of any action, such Indemnified Party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing at the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which such party
may have under this Section 5(f) except to the extent that the indemnifying
party has been prejudiced in any material respect by such failure or from any
liability which such party may have otherwise). In case any such action is
brought against any Indemnified Party, and the Indemnified Party notifies an
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate in and to assume the defense thereof, jointly with
any other indemnifying party, if any, so notified, with counsel reasonably
satisfactory to such Indemnified Party, and after notice from the
indemnifying party to such Indemnified Party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonably costs
of investigation. Notwithstanding the foregoing, the indemnified party shall
have the right to employ its counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such
action, or (ii) the indemnifying party shall not have employed counsel to
take charge of the defense of such action within a reasonable time after
notice of the commencement of the action. Anything in this subsection to the
contrary notwithstanding: (A) an indemnifying party shall not be liable for
any settlement of any claim or action effected without its written consent;
and (B) no indemnifying party shall, without the consent of the Indemnified
Party, consent to entry of any judgment or enter into any settlement that
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.
14
(iv) CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in this Section 5(g) is
for any reason held to be unavailable or is insufficient to hold harmless an
Indemnified Party, then the indemnifying party and the Indemnified Party shall
contribute to the aggregate Damages of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting from Damages
suffered by the indemnifying party any contribution received by the indemnifying
party from Persons, other than the Indemnified Party, who may also be liable for
contribution, including Persons who control the indemnifying party within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) to which the indemnifying party, on the one hand, and the Indemnified
Party, on the other hand, may be subject, in such proportions as is appropriate
to reflect the relative fault of the indemnifying party, on the one hand, and
the Indemnified Party, on the other hand, in connection with the statements or
omissions which resulted in Damages, as well as any other relevant equitable
considerations.
The relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by a party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties agree that it would not be just and
equitable if contribution pursuant to this Section 5(g)(iv) was determined by
PRO RATA allocation or by any other method of allocation which does not take
into account the equitable considerations referred to above. Notwithstanding
the foregoing, (i) any underwriting agreement entered into pursuant hereto
may provide that in no case shall any underwriter (except as may be provided
in any agreement among underwriters) be liable or responsible for any amount
in excess of the underwriting discount applicable to the Registrable
Securities purchased by such underwriters, and (ii) no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section
5(g)(iv), notify such party or parties from which contribution may be sought
of any obligation it or they may have under this Section 5(g)(iv) or
otherwise. No party shall be liable for contribution with respect to any
action or claim settled without its consent, which consent may not be
unreasonably withheld or delayed. Notwithstanding the foregoing, the
liability of a Holder except for any liability resulting from the willful
misconduct or intentional action of such Holder shall not exceed an amount
equal to the proceeds realized by such Holder of Registrable Securities sold
as contemplated herein.
(h) RULE 144 SALES.
(i) COMPLIANCE. The Company covenants that, so long as it is
subject to the reporting requirements of the Exchange Act, it will use its
reasonable best efforts to file the reports required to be filed by it under the
Exchange Act so as to enable any Holder to sell Registrable Securities pursuant
to Rule 144 under the Securities Act.
15
(ii) COOPERATION WITH HOLDERS. In connection with any sale,
transfer or other disposition by any Holder of any Registrable Securities
pursuant to Rule 144 under the Securities Act, the Company shall, to the extent
permissible under applicable law, cooperate with such Holder to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any Securities Act legend, and enable
certificates for such Registrable Securities to be issued at least two business
days prior to any sale of such Registrable Securities for such number of shares
and registered in such names as the Holder may reasonably request upon ten (10)
business days prior notice. The Company's obligation set forth in the previous
sentence shall be subject to the delivery, if reasonably requested by the
Company or its transfer agent, by counsel to such Holder (which counsel shall be
reasonably acceptable to the Company and its transfer agent), in form and
substance reasonably satisfactory to the Company and its transfer agent, of an
opinion that such Securities Act legend need not appear on such certificate.
SECTION 6. INFORMATION RIGHTS.
(a) From and after the closing of the Merger and so long as EHL
beneficially owns (x) at least 90% of the EHL Shares held by it immediately
after the closing of the Merger and (y) at least 5% of the outstanding equity
securities of the Company (clauses (x) and (y) together, the "EHL Retention
Condition"), the Company shall, on a timely basis, furnish EHL with annual and
quarterly reports concerning the Company the content of which will be
substantially as would be required to be publicly disclosed by an issuer whose
securities are registered under Section 12 of the Exchange Act.
(b) So long as the EHL Retention Condition remains satisfied, the Company
shall, on a timely basis, furnish EHL with the written materials that the
Company submits to the members of its Board of Directors if either of the
following shall have occurred and is continuing: (A) a payment default under
any of the Company's material debt agreements shall have occurred and is
continuing; or (B) the fifth anniversary of the closing of the Merger shall have
occurred and no Initial Public Offering shall have been consummated. During any
period when EHL is entitled to receive Board materials in accordance with this
Xxxxxxx 0, XXX xxxxx xx entitled to have one representative attend as an
observer at one meeting of the Company's Board of Directors per calendar year.
(c) EHL's failure to satisfy either or both of clauses (x) and (y) of the
EHL Retention Condition notwithstanding, so long as EHL owns at least 50% of the
EHL Shares held by it immediately after the closing of the Merger, the Company
shall cooperate with and respond to all reasonable requests for information
concerning the Company.
SECTION 7. RIGHT TO PARTICIPATE IN FUTURE FINANCINGS.
(a) In the event that, during the period beginning immediately after the
closing of the Merger up to but not including the Initial Public Offering, the
Company intends to engage in a New Equity Financing (as defined below), it shall
(i) provide EHL with written notice of such intention at least 20 days prior to
the scheduled closing of the New Equity Financing, describing the type of equity
securities to be issued, the price and the number or amount thereof, and the
general terms upon which the Company proposes to effect such issuance and (ii)
take steps as are necessary to enable EHL to participate, at EHL's option, as a
purchaser in such New Equity Financing such that EHL, through the exercise of
such option, would maintain its percentage interest in the outstanding
16
equity securities of the Company on a fully diluted basis ; PROVIDED that EHL
shall be entitled to the rights under this Section 7 only so long as the EHL
Retention Condition remains satisfied. For purposes hereof, a "New Equity
Financing" means the issuance by the Company of new equity securities of the
Company, or securities convertible into, or exercisable or exchangeable for,
such equity securities other than issuances of equity securities in
connection with (x) stock incentive or compensation plans approved by the
Board of Directors of the Company (y) business acquisitions by the Company
and (z) financings which in the aggregate involve gross proceeds of up to $25
million.
SECTION 8. CERTAIN COMPANY COVENANTS.
(a) The Company hereby agrees for the benefit of EHL and Permitted
Transferees that in the event that through one or more divestitures or asset
sales 98% or more of the Company's assets consist of cash or cash equivalents,
the Company will proceed expeditiously to liquidate the Company and distribute
its net assets to the Company's shareholders in accordance with the Certificate
of Incorporation and applicable law.
(b) The Company hereby agrees for the benefit of EHL and Permitted
Transferees that the holders of Class A Common, Class B Common, Class C Common
and Class D Common Stock of the Company will rank PARI PASSU with respect to the
declaration and payment of cash dividends by the Company.
(c) The covenants set forth in this Section 8 shall automatically
terminate at the Initial Public Offering.
SECTION 9. MISCELLANEOUS.
(a) NOTICES. All notices, instructions and other communications in
connection with this Agreement shall be in writing and may be given by (i)
personal delivery, (ii) sent by certified mail, return receipt requested,
postage prepaid, or (iii) delivery by a nationally recognized overnight courier,
to the parties at the addresses of each as set forth on the signature pages to
this Agreement (or at such other address as the Company may specify in a notice
to the other parties or as any other party may specify in a notice to the
Company and the other parties). Notices shall be deemed to have been given (A)
when actually delivered personally, (B) the next business day if sent by
overnight courier (with proof of delivery), and (C) on the fifth day after
mailing by certified mail.
(b) NO WAIVER. No course of dealing and no delay on the part of any party
hereto in exercising any right, power or remedy conferred by this Agreement
shall operate as a waiver thereof or otherwise prejudice such party's rights,
powers and remedies conferred by this Agreement or shall preclude any other or
further exercise thereof or the exercise of any other right, power and remedy.
(c) BINDING EFFECT; ASSIGNABILITY. This Agreement shall be binding upon
and, except as otherwise provided herein, shall inure to the benefit of the
respective parties and their permitted successors and assigns, including,
without limitation, Permitted Transferees to the extent specifically provided
for herein. This Agreement shall not be assignable except as otherwise
specifically provided herein; PROVIDED that IIEL's rights under Section 2 and
Section 4 hereof may be exercised by IIEL or any Affiliate of IIEL.
17
(d) AMENDMENT AND WAIVER. This Agreement may not be amended, modified or
supplemented, and no waiver or consent to departures from the provisions hereof
shall bind any party who has not given such waiver or consent, unless consented
to in writing by at least a majority in interest of the EHL Shares and the
Company.
(e) GOVERNING LAW; SERVICE OF PROCESS. This Agreement shall be construed
both as to validity and performance in accordance with, and governed by, the
laws of the State of New York applicable to agreements to be performed in New
York, without regard to principles of conflict of laws. Each of the parties
hereto irrevocably consents to the jurisdiction and venue of any state or
federal court situated in the City of New York in the State of New York, and
further consents to the service of any and all process in any action or
proceeding arising out of or relating to this Agreement by the mailing of copies
of such process to such party at its address pursuant to Section 7(a) hereof.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument, and all signatures need not appear
on any one counterpart.
(g) HEADINGS; SECTIONS. All headings and captions in this Agreement are
for purposes of reference only and shall not be construed to limit or affect the
substance of this Agreement. All references to Section in this Agreement refer
to Sections of this Agreement, unless the context otherwise expressly provides.
(h) ENTIRE AGREEMENT. This Agreement contains, and is intended as, a
complete statement of all the terms of the arrangements between the parties with
respect to the matters provided for, supersedes any previous agreements and
understandings between the parties with respect to those matters.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired in any way thereby.
18
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Rights Agreement as of the date first above written.
FALCON BUILDING PRODUCTS, INC., a
Delaware corporation
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Executive Vice-President
Address: 0 X. Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxx. 60606
EQUITY HOLDINGS LIMITED, an Illinois
limited partnership
By: /s/ Xxxxxx Xxxx,
-----------------------------------
Name: Xxxxxx Xxxx
Title: Trustee of General Partner
Address: Two North Riverside Plaza
Chicago, Ill. 60606
INVESTCORP INVESTMENT EQUITY
LIMITED, a Cayman Islands
corporation
By: /s/ Sydney X. Xxxxxxx
-----------------------------------
Name: The Director Ltd.
Title: Director
Address:
---------------------
---------------------
---------------------
OTHER CLASS D STOCKHOLDERS
BALLET LIMITED, a Cayman Islands
corporation
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
19
DENARY LIMITED, a Cayman Islands
corporation
By: /s/ Xxxxxx Xx Xxxxx
-----------------------------------
Name: Xxxxxx Xx Xxxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
GLEAM LIMITED, a Cayman Islands
corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
HIGHLANDS LIMITED, a Cayman Islands
corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
NOBLE LIMITED, a Cayman Islands
corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
OUTRIGGER LIMITED, a Cayman Islands
corporation
By: /s/ P. Xxxxx Xxxxxxxxx
-----------------------------------
Name: P. Xxxxx Xxxxxxxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
20
QUILL LIMITED, a Cayman Islands
corporation
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
RADIAL LIMITED, a Cayman Islands
corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
SHORELINE LIMITED, a Cayman Islands
corporation
By: /s/ H. Xxxxxxx Xxxxxx, III
-----------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
ZINNIA LIMITED, a Cayman Islands
corporation
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Address: X.X. Xxx 0000
Xxxx Xxxx Xxxxxxxx,
Xxxxxx Xxxx Grand Caymam,
Cayman Islands, BW1
21
