EXHIBIT 2
XXXX VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of July 16, 2002,
is entered into by and among URS Corporation, a Delaware corporation
("Parent"), Xxxx Capital Partners, L.P., a California limited partnership
("Xxxx Capital"), Xxxx Strategic Partners, L.P. a Delaware limited
partnership, BK Capital Partners IV, L.P., a California limited
partnership, Xxxxxxx Capital Partners III, L.P., a Delaware limited
partnership, Xxxxxxx Capital Partners II, L.P., a California limited
partnership, Xxxxxxx Capital Partners, L.P., a California
limited partnership and Xxxxxxx Capital Fund (Cayman), Ltd.,
a company incorporated under the laws of the Cayman Islands (collectively,
"Xxxx Limited Partnerships" and together with Xxxx Capital, "Xxxx").
Capitalized terms used but not defined herein have the meanings
specified for such terms in the Merger Agreement (defined below).
RECITALS
WHEREAS, on July 16, 2002, Parent, URS Holdings, Inc., a Delaware
corporation and wholly owned subsidiary of Parent ("Merger Sub 1"),
URS-LSS Holdings, Inc., a Delaware corporation and wholly owned
subsidiary of Parent ("Merger Sub 2"), Carlyle-EG&G Holdings Corp.,
a Delaware corporation ("EG&G") and Xxxx Xxxxxxx Services,
Inc., a Delaware corporation ("Xxxx"), entered into an Agreement and
Plan of Merger (the "Merger Agreement"), pursuant to which EG&G will
be merged with and into Merger Sub 1, and Xxxx will be merged with
and into Merger Sub 2 (the "Merger"), with each of Merger Sub 1 and
Merger Sub 2 as a surviving corporation;
WHEREAS, subject to Parent obtaining the approval of its
stockholders, shares of Parent's Series D Convertible Participating
Preferred Stock, par value $.01 per share ("Bridge Preferred Stock"),
will automatically convert into shares of Parent Common
Stock; and
WHEREAS, in order to induce Parent to enter into the Merger
Agreement, Parent has required that the Xxxx Limited Partnerships
enter into this Agreement, upon the terms and subject to the
conditions hereinafter set forth, with respect to the number of
shares of Parent Common Stock owned by each respective Xxxx
Limited Partnership, as set forth on Schedule I hereto and
owned by the Xxxx Managed Accounts (defined below), as set forth
on Schedule II hereto;
NOW, THEREFORE, in consideration of the mutual agreements
and covenants contained herein and other good and valuable
consideration, the parties hereto agree as follows:
ARTICLE 1
AGREEMENT TO VOTE SHARES
Section 1.1 Agreement to Vote.
(a) Each of the Xxxx Limited Partnerships
hereby agrees that during the time this Agreement is in effect, at
any meeting of the stockholders of Parent, however called, and
in any action by consent of the stockholders of Parent, such
stockholder will vote or cause to be voted: (i) all of the shares
of Parent Common Stock set forth opposite such stockholder's name
on Schedule I hereto and (ii) any and all shares of Parent Common
Stock acquired by such stockholder on or after the date hereof,
subject to the termination of this Agreement pursuant to
Section 5.1 hereof, to approve the issuance of Parent Common
Stock upon conversion of the Bridge Preferred Stock.
(b) Xxxx Capital hereby agrees that during
the time this Agreement is in effect, at any meeting of the
stockholders of Parent, however called, and in any action
by consent of the stockholders of Parent, it will vote or cause
to be voted: (i) all of the shares of Parent Common Stock set
forth opposite the name of the account for which it has
investment and voting discretion set forth on Schedule II hereto
(the "Xxxx Managed Accounts") and (ii) any and all shares of
Parent Common Stock acquired by Xxxx on behalf of such Xxxx
Managed Accounts on or after the date hereof, subject to the
termination of this Agreement pursuant to Section 5.1 hereof,
to approve the issuance of Parent Common Stock upon conversion
of the Bridge Preferred Stock. Notwithstanding the foregoing,
this Section 1.1(b) shall not require Xxxx to vote, or cause
to be voted, with respect to any matter presented to the
stockholders of Parent for a vote, any shares of Parent
Common Stock that Xxxx sells in accordance with Section 3.3
prior to the record date with respect to the vote on such matter.
Section 1.2 Adjustment upon Changes in Capitalization.
In the event of any change in the shares of Parent Common
Stock by reason of any stock dividends, splits, mergers,
recapitalizations or other changes in the corporate or
capital structure of Parent, the number and kind of shares of
Parent Common Stock subject to this Agreement shall be
appropriately adjusted.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF THE XXXX LIMITED PARTNERSHIPS AND XXXX CAPITAL
Each of the Xxxx Limited Partnerships and Xxxx Capital hereby
severally represents and warrants to Parent as follows:
Section 2.1 Title to Parent Common Stock.
(a) As of the date hereof, each Xxxx
Limited Partnership is the record and beneficial owner of the
number of shares of Parent Common Stock set forth opposite such
stockholder's name on Schedule I hereto, and such shares of Parent
Common Stock are all of the Parent Common Stock owned, either of
record or beneficially, by such Xxxx Limited Partnership. Such
shares of Parent Common Stock are owned free and clear of all
security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on voting rights, charges
or other encumbrances of any nature whatsoever other than pursuant
to this Agreement, except as disclosed to Parent prior to
the execution and delivery of this Agreement. Such Xxxx Limited
Partnership has not appointed or granted any proxy, which
appointment or grant is still in effect, with respect
to such shares of Parent Common Stock.
(b) As of the date hereof, Xxxx Capital
is the investment manager for the Xxxx Managed Accounts, and
has sole investment and voting discretion with respect
to the shares of Parent Common Stock held by the Xxxx Managed
Accounts (subject to the right of the beneficial owners of the
Xxxx Managed Accounts to terminate the management agreements
relating thereto). The Xxxx Managed Accounts are the record
and beneficial owner of the number of shares of Parent Common
stock set forth opposite such Xxxx Managed Account's name on
Schedule II hereto, and such shares of Parent Common Stock are
all of the Parent Common Stock owned, either of record or
beneficially, by such Xxxx Managed Account. Such shares of
Parent Common Stock are owned free and clear of all security
interests, liens, claims, pledges, options, rights of first
refusal, agreements, limitations on voting rights, charges or
other encumbrances of any nature whatsoever other than
pursuant to this Agreement, except as disclosed to Parent
prior to the execution and delivery of this Agreement. Except
for the grant of voting and investment discretion to Xxxx
Capital, such Xxxx Managed Account has not appointed
or granted any proxy, which appointment or grant is still
in effect, with respect to such shares of Parent Common Stock.
Section 2.2 Authority Relative to this Agreement.
Each of the Xxxx Limited Partnerships and Xxxx Capital
has all requisite power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by each of the
Xxxx Limited Partnerships and Xxxx Capital and the consummation
of the transactions contemplated hereby have been duly and validly
authorized by all corporate or other applicable actions on the
part of such person necessary to authorize this Agreement or
to consummate such transactions. This Agreement has been duly
and validly executed and delivered by each of the Xxxx Limited
Partnerships and Xxxx Capital and constitutes a legal, valid and
binding obligation of such person, enforceable against such
person in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding
at law or in equity).
Section 2.3 No Conflict.
(a) Neither the execution and delivery of
this Agreement nor the consummation by such stockholder of the
transactions contemplated hereby will (i) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to
such Xxxx Limited Partnership or Xxxx Capital, or by which the
shares of Parent Common Stock owned by such stockholder are bound
or affected or (ii) conflict with, or constitute a violation of,
or constitute a default under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or encumbrance on any of the
shares of Parent Common Stock owned by such stockholder pursuant
to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation
to which such stockholder is a party or by which such stockholder
or the shares of Parent Common Stock owned by such stockholder
are bound or affected, except for any such conflicts, violations,
breaches, defaults or other occurrences that would not prevent or
delay the performance by such stockholder of its obligations
under this Agreement.
(b) The execution and delivery of this
Agreement by the Xxxx Limited Partnerships or Xxxx Capital does
not, and the performance of this Agreement by such Xxxx Limited
Partnerships or Xxxx Capital will not, require any consent,
approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, except where the
failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications would not prevent or
delay the performance by such person of its obligations under
this Agreement.
ARTICLE 3
COVENANTS OF THE XXXX LIMITED PARTNERSHIPS AND XXXX CAPITAL
Section 3.1 No Inconsistent Agreements.
Each of the Xxxx Limited Partnerships and Xxxx Capital
hereby covenants and agrees that, except as contemplated by
this Agreement or the Merger Agreement, it shall not
enter into any voting agreement or grant a proxy or power
of attorney with respect to its shares of Parent Common Stock
that is inconsistent with this Agreement.
Section 3.2 Registration Rights Agreement.
Xxxx Strategic Partners, L.P. and Xxxx Capital hereby covenant
and agree to execute the Registration Rights Agreement, attached
hereto as Exhibit A, on or prior to the Closing Date.
Section 3.3 Transfer of Title.
Each of the Xxxx Limited Partnerships and Xxxx Capital
hereby covenants and agrees that, so long as this Agreement
is in effect, it will not transfer or cause to be transferred
record or beneficial ownership of any of the shares of Parent
Common Stock (including to its partners) owned by the Xxxx
Limited Partnerships or the Xxxx Managed Accounts, unless the
transferee agrees in writing (which written agreement must be in form
reasonably acceptable to Parent and enforceable by Parent) to be
bound by the terms and conditions of this Agreement. The preceding
sentence shall not apply to any disposition of Parent Common
Stock by a Xxxx Limited Partnership or a Xxxx Managed Account
(a) in accordance with Rule 144 pursuant to the Securities
Act of 1933, as such rule may be amended from time to time,
or any successor rule or regulation, or (b) pursuant to a
registration statement prepared in accordance with the
Registration Rights Agreement, attached hereto as Exhibit A.
ARTICLE 4
COVENANTS OF PARENT
Section 4.1 Other Agreements. Parent hereby covenants
that it shall not amend, waive, forgive performance of or
terminate any agreement it now has or hereafter enters into obligating
one or more of its stockholders to vote, or pursuant to which one
or more of its stockholders agrees to vote, in favor of the Merger,
the Merger Agreement (as it may be amended from time to time), the
transactions contemplated by the Merger Agreement and the issuance
of Parent Common Stock upon conversion of the Bridge Preferred Stock
and that it shall enforce any rights it has pursuant to any
such agreement.
ARTICLE 5
TERMINATION
Section 5.1 Termination.
This Agreement shall terminate automatically upon the earlier of
(a) the later to occur of (x) the Effective Time and (y) the date
on which Parent obtains the Parent Stockholder Approval and
(b) the valid termination of the Merger Agreement for any reason
other than the failure to receive the approval of the Merger
Agreement by the stockholders of EG&G or Xxxx, as applicable,
as the result of a breach of this Agreement by one or more of
the Principal Target Stockholders.
Section 5.2 Effect of Termination.
In the event of the termination of this Agreement pursuant to
Section 5.1 hereof, this Agreement shall forthwith become void and
have no effect, without liability on the part of any party hereto
or its trustees, partners, beneficiaries, directors, officers,
stockholders or affiliates.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Notices.
All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given
if delivered personally, telecopied (which is confirmed) or sent
by overnight courier (providing proof of delivery) to the parties
at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to Parent, to:
URS CORPORATION
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Telecopy No.: (000) 000-0000
with copies to:
XXXXXX GODWARD LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopy No. (000) 000-0000
If to Xxxx, to:
XXXX STRATEGIC PARTNERS, L.P.
and/or Xxxx Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy No. (000) 000-0000
with copies to:
XXXXXX, XXXXXX & XXXXXXXXX
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxxx
Telecopy No. (000) 000-0000
Any party from time to time may change its address for the purposes
of notices hereunder by giving written notice to the other parties
hereto of such new address.
Section 6.2 Entire Agreement.
This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and
supersedes all prior agreements or understandings, both written
and oral, among the parties hereto with respect to the subject
matter hereof.
Section 6.3 Stockholder Capacity.
Each of the Xxxx Limited Partnerships signs solely in its
capacity as the record holder and beneficial owner of such shares
of Parent Common Stock. Xxxx Capital signs solely in its capacity
as the investment manager for the Xxxx Managed Accounts and, as to
representations made about the shares of Parent Common Stock owned
by the Xxxx Managed Accounts, such representations are limited to
the knowledge of Xxxx Capital (other than the representation as to
the record ownership of such shares and the representations as
to Xxxx'x authority to vote and dispose of such shares).
Section 6.4 Specific Performance.
The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement
in any court of the United States located in the State of Delaware or
in a Delaware state court, this being in addition to any other remedy
to which they are entitled at law or in equity. In addition, each
of the parties hereto: (a) consents to submit such party to the
personal jurisdiction of any federal court in the event any
dispute arises out of this Agreement or any of the transactions
contemplated hereby; (b) agrees that such party will not attempt
to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court; (c) agrees that such party
will not bring any action relating to this Agreement or the
transactions contemplated hereby in any court other than a federal
court sitting in the state of Delaware or a Delaware state court;
and (d) waives any right to trial by jury with respect to any claim
or proceeding related to or arising out of this Agreement or any of
the transactions contemplated hereby.
Section 6.5 Severability.
If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect and shall not in any way
be affected or impaired thereby so long as the economic or legal
substance of this Agreement is not affected in any manner materially
adverse to any party.
Section 6.6 Amendment.
This Agreement may be amended only by a written instrument
signed by each of the parties hereto.
Section 6.7 Assignment.
Except as required by operation of law, this Agreement shall not
be assignable by the parties hereto without the prior written consent
of each of the other parties. This Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their
respective successors and permitted assigns.
Section 6.8 Governing Law.
This Agreement shall be governed by the laws of the State of
Delaware without giving effect to the principles of conflicts of
laws thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, in two or more counterparts, each of which shall
be deemed to be an original and all of which collectively shall be
deemed to be one and the same instrument, as of the date first
written above.
PARENT URS CORPORATION
By:_________________________________
Xxxx X. Xxxxxxxxx, Executive Vice
President, Chief Financial Officer
and Secretary
XXXX STRATEGIC XXXX STRATEGIC PARTNERS, L.P.
By: XXXX STRATEGIC GP, L.L.C.,
its general partner
By: _________________________________
N. Xxxxx Xxxx, Managing Member
XXXX CAPITAL XXXX CAPITAL PARTNERS, L.P.
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By: _________________________________
N. Xxxxx Xxxx, Managing Partner
XXXX LIMITED PARTNERSHIPS BK CAPITAL PARTNERS IV, X.X.
XXXXXXX CAPITAL PARTNERS, X.X.
XXXXXXX CAPITAL PARTNERS II, X.X.
XXXXXXX CAPITAL PARTNERS III, L.P.
By: Xxxx Capital Partners, L.P.,
its general partner
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By: ________________________________
N. Xxxxx Xxxx, Managing Partner
XXXXXXX CAPITAL FUND (CAYMAN), LTD.
By: Xxxx Capital Partners, L.P.,
its investment advisor
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By: ___________________________________
N. Xxxxx Xxxx, Managing Partner
SCHEDULE I
Xxxx Limited Partnerships Common Stock of Parent
Xxxx Strategic Partners, L.P. 5,845,104
BK Capital Partners IV, L.P. 346,195
Xxxxxxx Capital Partners III, L.P. 151,400
Xxxxxxx Capital Partners II, L.P. 102,700
Xxxxxxx Capital Partners, L.P. 452,398
Xxxxxxx Capital Fund (Cayman), Ltd. 34,267
SCHEDULE II
Managed Account Common Stock of Parent
The Common Fund 757,980
United Brotherhood of Carpenters 11,500
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
See attached
EXHIBIT B
MANAGEMENT RIGHTS AND STANDSTILL AGREEMENT
Not attached
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of July 16, 2002 by and among URS Corporation,
a Delaware corporation (the "Corporation"), Xxxx Strategic
Partners, L.P. ("Xxxx Strategic"), Xxxx Capital Partners, L.P.
("Xxxx Capital" and, together with Xxxx Strategic, "Xxxx") and
Carlyle-EG&G, L.L.C. ("EG&G") and EG&G Technical Services
Holdings, L.L.C. (the "Holder Representative" and together with
EG&G, "Carlyle").
WHEREAS, the Corporation and Affiliates of Xxxx were party to
that certain Registration Rights Agreement dated February 21, 1990,
and whereas the Corporation and Affiliates of Xxxx were parties to
that certain Registration Rights Agreement dated June 9, 1999;
WHEREAS, the Corporation and the Holder Representative are
parties to an Agreement and Plan of Merger, dated as of July 16, 2002
pursuant to which the Corporation is issuing Common Stock and
Series D Senior Convertible Participating Preferred Stock to Carlyle
and other individuals;
WHEREAS, in order to induce Carlyle to consummate the
transactions contemplated by the Agreement and Plan of Merger,
the Corporation and Xxxx have agreed to enter into this Agreement
to provide the registration rights set forth in this Agreement for
the benefit of Xxxx, Xxxxxxx and their direct and indirect transferees;
WHEREAS, the execution and delivery of this Agreement is a
condition to Carlyle's obligations pursuant to the Agreement and
Plan of Merger.
NOW, THEREFORE, in consideration of the premises and of the
respective representations, warranties, covenants, agreements and
conditions contained herein, each of the Corporation, Xxxx and
Carlyle (together "Parties") agree as follows:
Section 1. Definitions. For purposes of this Agreement, the
following terms shall have the following respective meanings:
Affiliate: An affiliate of any specified person shall mean any
other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person.
For the purposes of this definition, "control," when used with
respect to any person, means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms
"affiliated," "controlling" and "controlled" have meanings correlative
to the foregoing.
Xxxx Cutback Percentage: 50%.
Xxxx Holders: Xxxx, any Affiliate of Xxxx or account for which
Xxxx (or its Affiliates) has investment discretion which is a
holder of Registrable Securities as of the date of this Agreement and
any other person or entity to whom any of the foregoing may transfer
the rights described in this Agreement.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York,
New York are authorized or obligated by law or executive order to close.
Carlyle Cutback Percentage: 50%.
Carlyle Holders: Carlyle, the other holders of Registrable
Securities other than the Xxxx Holders and any other person or
entity to whom any of the foregoing may transfer the rights
described in this Agreement.
Closing Date: The date of the Closing, as such term is
defined in the Agreement and Plan of Merger.
Common Stock: The common stock, par value $0.01 per share,
of the Corporation or shares of any class or classes resulting
from any reclassification or reclassifications thereof and which
have no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation and which are
not subject to redemption by the Corporation.
Corporation: URS Corporation, a Delaware corporation,
and any successor entity thereto.
Cutback: Cutback is defined below in Section 2(f).
Distributee: Any person that is a member, stockholder or
partner of any of the Holders or any person that is a member,
stockholder or partner of a Distributee to which Registrable
Securities are transferred or distributed by a Holder or Distributee.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
Form S-1: Such form under the Securities Act in effect on
the date hereof or such registration form under the Securities Act
subsequently adopted by the SEC which replaces such form.
Form S-3: Such form under the Securities Act in effect on
the date hereof or such registration form under the Securities
Act subsequently adopted by the SEC which replaces such form.
Form S-4: Such form under the Securities Act in effect on
the date hereof or such registration form under the Securities
Act subsequently adopted by the SEC which replaces such form.
Holder: Xxxx Holders, Carlyle Holders and each holder of
any Registrable Securities, including an Affiliate, a Distributee
or other successors, assigns and transferees of a Holder or a
Holder that has received Registrable Securities pursuant to
Section 9(f) and agrees to be bound by the terms of this Agreement.
NASD: The National Association of Securities Dealers.
NYSE: The New York Stock Exchange.
Person: Any natural person, firm, partnership, association,
corporation, company, trust, business trust, governmental entity
or other entity.
Prospectus: The prospectus included in the Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed in reliance
upon Rule 430A), as amended or supplemented by any prospectus
supplement, with respect to the resale of any of the Registrable
Securities covered by such Registration Statement, and all other
amendments and supplements to any such prospectus, including
post-effective amendments, and all materials incorporated by
reference or deemed to be incorporated by reference, if any, in
such prospectus.
Registrable Securities: Registrable Securities include:
(a) 1,856,440 shares of Common Stock held through partnerships
or managed accounts for which Xxxx Capital is the General Partner
or Investment Advisor; (b) 5,845,104 shares of Common Stock issued
to Xxxx upon conversion of all outstanding shares of Series B
Exchangeable Convertible Preferred Stock issued under the Securities
Purchase Agreement, dated June 9, 1999; (c) Common Stock issued
pursuant to the Merger Agreement; (d) Common Stock issuable upon
conversion of the Corporation's Series D Senior Convertible
Participating Preferred Stock (the "Series D Preferred Stock");
(e) in the event such shares of Series D Preferred Stock are
converted into Series E Senior Cumulative Convertible Participating
Preferred Stock (the "Series E Preferred Stock"), such shares of
Series E Preferred Stock; (f) Common Stock issuable upon conversion
of the Series E Preferred Stock; and (g) any other securities issued
or issuable with respect to any of the securities described in the
foregoing clauses (a) through (f) upon any conversion or exchange
thereof, by way of stock dividend or other distribution, stock split
or reverse stock split of in connection with a combination of shares,
recapitalization, merger, consolidation, exchange offer or other
reorganization.
As to any particular Registrable Securities once issued, such
securities shall cease to be Registrable 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) such securities shall have been distributed
to the public in reliance upon Rule 144; (C) such securities shall
have been acquired by the Corporation; or (D) such securities shall
have been sold in a private transaction in which the transferor's
rights under this Agreement were not assigned.
Registration Expenses: All fees and expenses incident to the
performance of or compliance with the provisions of this Agreement,
whether or not any Registration Statement is filed or becomes
effective, including without limitation, all (a) registration and
filing fees (including without limitation, (i) fees with
respect to filings required to be made with the NASD in
connection with an underwritten offering, (ii) fees and expenses of
compliance with state securities or blue sky laws and (iii) fees
and other expenses associated with admitting for trading on the NYSE
or any other applicable exchange or automated dealer system);
(b) printing expenses; (c) fees and disbursements of all independent
certified public accountants (including, without limitation, the
reasonable expenses of any special audit and "cold comfort" letters
required by or incident to such performance); (d) the fees and expenses
of any "qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to Rule 2720 of the
NASD Rules of Conduct; (e) fees and expenses of all attorneys, advisers,
appraisers and other persons retained by the Corporation or
any Subsidiary of the Corporation; (f) internal expenses of the
Corporation and its Subsidiaries; (g) the expenses of any annual audit;
(h) the expenses relating to printing, word processing and distributing
all Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary in order to
comply with this agreement; (i) if any of the Xxxx Holders are selling
Registrable Securities in such registration, the reasonable out-of-pocket
expenses and, as to in-house counsel, allocated costs of
the Xxxx Holders of Registrable Securities being registered in such
registration incurred therewith including, without limitation, the
reasonable fees and disbursements of not more than one outside counsel
and one in-house counsel (who may be employed by an Affiliate of a Holder)
for the Xxxx Holders chosen by the Xxxx Holders holding a majority of
the Registrable Securities of Xxxx Holders to be included in such
Registration Statement; and (j) if any of the Carlyle Holders are selling
Registrable Securities in such registration, the reasonable out-of-pocket
expenses and, as to in-house counsel, allocated costs of
the Carlyle Holders of the Registrable Securities being registered in such
registration incurred therewith including, without limitation, the
reasonable fees and disbursements of not more than one outside counsel
and one in-house counsel (who may be employed by an Affiliate of a Holder)
for the Carlyle Holders chosen by the Carlyle Holders holding a
majority of the Registrable Securities of Carlyle Holders to be included
in such Registration Statement. "Registration Expenses" shall not
include any underwriting discounts or commissions or any transfer taxes
payable in respect of the sale of Registrable Securities, which such
expenses shall be paid or borne by the Holders thereof, nor shall
"Registration Expenses" include any fees or expenses incurred by or on
behalf of any Holder who, without cause, either withdraws a request
for registration or withdraws from a registration.
Registration Statement: Any registration statement of the
Corporation filed with the SEC pursuant to the Securities Act
(which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of
distribution thereof and shall include all financial statements
required by the SEC to be filed therewith) that covers the resale
of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements
to such registration statement or Prospectus (including pre- and
post-effective amendments), all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference,
if any, in such registration statement.
Requesting Holder: Any Holder that initiates a request for
registration hereunder.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or
any successor rule or regulation.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or
any successor rule or regulation.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or
any successor rule or regulation.
Rule 430A: Rule 430A promulgated by the SEC pursuant to the
Securities Act, as such rule may be amended from time to time, or
any successor rule or regulation.
SEC: The Securities and Exchange Commission, or any successor
governmental agency or authority thereto.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Special Registration: The registration of shares of equity
securities and/or options or other rights in respect thereof to
be offered solely to or by directors, members of management,
employees, consultants or sales agents, distributors or
similar representatives of the Corporation or its direct or
indirect Subsidiaries, solely on Form S-8 or any successor form.
Subsidiary: With respect to any Person, any corporation or
Person, a majority of the outstanding voting stock or other equity
interests of which is held, directly or indirectly, by that Person.
Section 2. Demand Registration.
(a) Requests by Xxxx Holder. Subject to the
provisions of Section 2(c)(ii), Xxxx Holders holding not less
than 50% of the then-outstanding Registrable Securities held by all
Xxxx Holders shall have the right to make written requests that the
Corporation effect registrations under the Securities Act
of all or part of the Registrable Securities of such Xxxx Holders,
which requests shall specify the intended method of disposition thereof
by such Xxxx Holders, including whether the registration requested is
for an underwritten offering. For a registration to be underwritten,
Requesting Holders holding not less than 50% of the Registrable
Securities held by all Requesting Holders must so request. The
Corporation shall not be required to effect more than four registrations
under this Section 2(a).
(b) Requests by Xxxxxxx Xxxxxx. Subject to the
provisions of Section 2(c)(ii), Carlyle Holders holding not
less than 50% of the then-outstanding Registrable Securities held
by all Carlyle Holders shall have the right to make written requests
that the Corporation effect registrations under the Securities Act of
all or part of the Registrable Securities of such Carlyle Holders,
which requests shall specify the intended method of disposition
thereof by such Carlyle Holders, including whether the registration
requested is for an underwritten offering. For a registration to be
underwritten, Requesting Holders holding not less than 50% of the
Registrable Securities held by all Requesting Holders must so request.
The Corporation shall not be required to effect more than three
registrations under this Section 2(b).
(c) Obligation to Effect Registration.
(i) Within 10 business days after receipt by the
Corporation of any request for registration pursuant to Section 2(a) or
2(b), the Corporation shall give written notice of such requested
registration to all Holders, and as expeditiously as possible will use
its best efforts to effect the registration under the Securities Act of:
(1) the Registrable Securities which the
Corporation has been so requested to register pursuant to Section 2(a) or
2(b); and
(2) all other Registrable Securities which the
Corporation has been requested to register by any other Holders thereof by
written request given to the Corporation within 10 days after the
Corporation has given such written notice.
(ii) The Corporation's obligations under
Sections 2(a) and 2(b) shall be subject to the following limitations:
(1) the Corporation shall not be required
to effect a registration during the period starting with the date of
filing of, and ending on the date 180 days following the effective date
of, the registration statement pertaining to a public offering by the
Corporation so long as the Holders are permitted to register and sell
in such offering all such Registrable Securities as they have requested
be included in such offering without cutback under Section 2(f);
provided, that, (i) the Corporation may not decline to register shares
pursuant to this clause (1) more than once every two years (such time
period to commence upon the expiration of the end of the 180-day period
referred to above) and (ii) the Corporation may not decline to register
shares pursuant to this clause (1) at any time prior to six (6) months
after the date hereof unless the Corporation is effecting such
registration in order to refinance the Bridge Loans (as defined in
the Commitment Letters (as defined in the Merger Agreement)); and
(2) the Corporation shall not be
required to effect a registration on Form S-1 if it has filed and
has maintained an effective "shelf' Registration Statement on
Form S-3 pursuant to Section 4(d) and such Form S-3 is effective
and permitted to be used by the Requesting Holders to sell all of the
Registrable Securities such Requesting Holders wish to sell.
(d) Effective Registration Statement. A registration
requested pursuant to Section 2(a) or 2(b) shall not be deemed to have
been effected unless it is declared effective by the SEC and remains
effective for the period specified in Section 5(b). Notwithstanding
the preceding sentence, a registration requested pursuant to
Section 2(a) or 2(b) that does not become effective after the
Corporation has filed a Registration Statement with respect thereto
by reason of the refusal to proceed of the Requesting Holders without
cause, or by reason of a request by a majority of the Requesting
Holders participating in such registration that such registration be
withdrawn, shall be deemed to have been effected by the Corporation at
the request of such Requesting Holders.
(e) Inclusion of Other Securities. Notwithstanding
any other provision of this Section 2:
(i) The Corporation may, subject to the remainder
of this Section 2(e) and subject to Section 2(f), elect to include in
any Registration Statement made pursuant to Section 2(a) or 2(b),
authorized but unissued shares of Common Stock or shares of Common Stock
held as treasury stock; and
(ii) The Corporation shall not register securities
(other than Registrable Securities) for sale for the account of any
Person (other than the Corporation or the Holders) in any registration
requested pursuant to Section 2(a) or 2(b).
(f) Cutbacks and Allocation of Opportunity to Register
Securities. If any Registration Statement made pursuant to Section 2(a)
or 2(b) involves an underwritten offering and if the underwriter advises
the Requesting Holder in writing that marketing factors require a limitation
of the number of shares to be underwritten (a "Cutback"), then the
Requesting Holder shall so advise the Corporation which shall advise all
Holders of Registrable Securities which would otherwise be underwritten
pursuant thereto, and the number of shares of Registrable Securities
that may be included in the underwriting shall be allocated among all
participating Holders thereof as follows: (i) the Xxxx Holders as a
group shall be entitled to the Xxxx Cutback Percentage of the Registrable
Securities actually sold in the offering and (ii) the Carlyle Holders as
a group shall be entitled to sell the Carlyle Cutback Percentage of the
Registrable Securities actually sold in the offering; provided, however,
that, to the extent that the number of shares the Xxxx Holders or the
Carlyle Holders, as a group, are entitled to register pursuant to this
sentence exceeds the number that such group of holders actually seeks to
register, then such excess shall be added to the number of shares that the
Carlyle Holders or the Xxxx Holders, respectively, shall be entitled to
register.
Section 3. Registration by the Corporation.
(a) Procedure. If the Corporation at any time proposes to
register any of its Common Stock under the Securities Act (other than a
Registration on Form S-4 with respect to any merger, consolidation or
acquisition, a demand registration pursuant to Section 2(a) or 2(b) or
pursuant to a Special Registration), whether or not for sale for its
own account, and the registration form to be used may be used for the
registration of Registrable Securities, it shall each such time give
prompt written notice to all Holders of Registrable Securities.
Upon the written request of any Holder of Registrable Securities
given to the Corporation within 10 business days after the Corporation
has given any such notice, the Corporation will use its best efforts
to effect the registration under the Securities Act of all Registrable
Securities requested by the Holders thereof to be included registered,
provided that:
(i) if, at any time after giving written
notice of its intention to register any securities and prior to the
effective date of the Registration Statement filed in connection with
such registration, the Corporation shall determine for any reason not
to register such securities, the Corporation may, at its election, give
written notice of such determination to each Holder that was previously
notified of such registration and, thereupon, shall not register any
securities (including Registrable Securities) in connection with such
registration (but shall nevertheless pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of
any Holders to request that a registration be effected under
Section 2(a) or 2(b).
(b) Cutbacks and Allocation of Opportunity to Register
Securities. If any Registration Statement made pursuant to this
Section 3 involves an underwritten offering and if the underwriter
advises the Corporation in writing that marketing factors require a
Cutback, then the Corporation shall advise the Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among all participating
Holders thereof and the Corporation as follows:
(i) The Corporation shall be entitled to
sell 80% of the Registrable Securities actually sold in the
offering; and
(ii) The Requesting Holders shall be entitled to
sell 20% of the Registrable Securities actually sold in the offering,
allocated according to the Xxxx Cutback Percentage and the Carlyle
Cutback Percentage; provided, however, that, to the extent that the
number of shares the Xxxx Holders or the Carlyle Holders, as a group,
are entitled to register pursuant to this sentence exceeds the number
that such group of holders actually seeks to register, then such excess
shall be added to the number of shares that the Carlyle Holders or the
Xxxx Holders, respectively, shall be entitled to register.
(c) No registration effected under this Section 3
shall relieve the Corporation of its obligation to effect
registrations upon request under Section 2(a) or 2(b). If the
offering by the Corporation is not underwritten, the Corporation
shall not be obligated to cause any piggyback registration under this
Section 3 to be underwritten.
Section 4. Form S-3 Registrations. In case the
Corporation shall receive from any Holder or Holders of
Registrable Securities a written request or requests that the
Corporation effect a registration on Form S-3 or any similar short-form
registration statement and any related qualification or compliance
with respect to all or a part of the Registrable Securities held by
such Holder or Holders, the Corporation will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other Holders of Registrable Securities; and
(b) as expeditiously as possible, effect such
registration and all such qualifications and compliances as may
be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holder's or Holders'
Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any
other Holder or Holders joining in such request as are specified
in a written request given within 10 days after receipt of such
written notice from the Corporation; provided, however, that
the Corporation shall not be obligated to effect any such
registration, qualification or compliance pursuant to this
Section 4:
(i) if Form S-3 is not available for such
offering by the Holders;
(ii) if the Holders, together with the
holders of any other securities of the Corporation entitled to
inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price
to the public of less than $5,000,000;
(iii) if within 30 days of receipt of a
written request from any Holder or Holders pursuant to this
Section 4, the Corporation gives notice to such Holder or Holders
of the Corporation's bona fide intention to make a public offering
within 90 days; provided, that (i) the Corporation may only give such
notice once in any 12-month period and (ii) the Corporation may not
decline to register shares pursuant to this clause (iii) at any time
prior to six (6) months after the date hereof unless the Corporation
is effecting such registration in order to refinance the Bridge Loans
(as defined in the Commitment Letters (as defined in the Merger
Agreement));
(iv) if the Corporation has, within the 90-day
period preceding date of such request, effected a Corporation-
initiated registration (other than a Special Registration); or
(v) in any particular jurisdiction in which the
Corporation would be required to qualify to do business or to execute
a general consent to service of process in effecting such registration,
qualification or compliance.
(c) Subject to the foregoing, the Corporation shall
file a Form S-3 registration statement covering the Registrable
Securities and other securities so requested to be registered as
expeditiously as possible after receipt of the request or requests
of the Holders.
(d) If requested and if the Corporation is eligible
to file such Registration Statement on Form S-3, the Registration
Statement filed under this Section 4 shall provide for the sale by
the Holders thereof of the Registrable Securities from time to time
on a delayed or a continuous basis under Rule 415 under the
Securities Act.
(e) Registrations effected pursuant to this Section 4
shall not be counted as demands for registration pursuant to Section 2
or registrations by the Corporation pursuant to Section 3; provided,
however, that if such registration includes an underwritten offering,
it shall constitute a separate "demand" registration for purposes of
Section 2(a) and 2(b).
Section 5. Registration Procedures. The Corporation shall
pay all Registration Expenses in connection with each registration
of Registrable Securities pursuant to this Agreement. If and
whenever the Corporation is required to effect or use its best
efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2, 3 and 4, the
Corporation shall:
(a) Furnish to the Holders and the managing
underwriters, if any, copies of all such documents proposed to
be filed (excluding, unless requested, those documents incorporated
or deemed to be incorporated by reference and then only to the Holder
who so requested) and use its commercially reasonable efforts to reflect
in each such document, when so filed with the SEC, such comments as the
Holders may reasonably propose. The Corporation shall not file any such
Registration Statement or related Prospectus or any amendments
or supplements thereto (excluding any document that would be
incorporated or deemed incorporated by reference) to which the
Holder or the managing underwriters, if any, shall reasonably
object in writing (by hand-delivery, courier guaranteeing overnight
delivery or telecopy) within five Business Days after the
receipt of such documents. Notwithstanding the foregoing, the
Corporation shall not be required to furnish to the Holders or
the managing underwriters, if any, any amendments or supplements
to the Registration Statement or Prospectus filed solely to
reflect changes to the Registrable Securities held by any particular
Holder or immaterial revisions to the information contained therein.
(b) Prepare and file with the SEC such amendments,
including post-effective amendments, and supplements to such
Registration Statement and the Prospectus used in connection
therewith and such other documents as may be necessary to keep
such Registration Statement effective, and comply with the
provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement in
accordance with the intended method or methods of disposition
by the sellers thereof set forth in such Registration
Statement or Prospectus, as so amended and supplemented, until
the earlier of:
(i) 60 days after the effective date of such Registration Statement
(720 days in the case of a Shelf Registration pursuant to
Section 4(d)) or (ii) the consummation of the disposition by the
Holders of all the Registrable Securities covered by such
Registration Statement and otherwise comply with the provisions
of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(c) Notify the Holders and the managing underwriters,
if any, promptly and, if requested by any such person, confirm
such notice in writing:
(i) (1) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed
and (2) with respect to a Registration Statement or any post-effective
amendment, when the same has become effective;
(ii) of any written comments from the SEC with
respect to any filing and of any request by the SEC or any other
Federal or state governmental authority for amendments or supplements
to such Registration Statement or related Prospectus or for
additional information related thereto;
(iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court
of any stop order, order or injunction suspending or enjoining the
use or effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose;
(iv) of the receipt by the Corporation of any
notification with respect to the suspension of qualification or
exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose;
(v) of the existence of any fact or the
happening of any event during the period of effectiveness that
makes any statement of material fact made in such Registration
Statement or related Prospectus untrue in any material respect,
or that requires the making of any changes in such Registration
Statement or Prospectus so that, in the case of the Registration
Statement, it 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
and that, in the case of the Prospectus, such Prospectus 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, in light of the circumstances
under which they were made, not misleading; and
(vi) of the determination by the Corporation
that a post-effective amendment to the Registration Statement
will be filed with the SEC.
(d) Use commercially reasonable efforts to obtain the
withdrawal of any stop order or order enjoining or suspending the
use or effectiveness of a Registration Statement or the lifting
of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(e) If requested by the Requesting Holders, or managing
underwriters, if any, to:
(i) promptly include in a Prospectus supplement
or post-effective amendment such information as the Requesting
Holders or managing underwriters, if any, may reasonably request
to be included therein; and
(ii) make all required filings of such Prospectus
supplement or such post-effective amendment as expeditiously as
possible after the Corporation has received notification of the
matters to be included in such Prospectus supplement or
post-effective amendment.
(f) Furnish to each Holder who so requests, and
each managing underwriter, if any, without charge, at least
one copy of the Registration Statement and each amendment
thereto (but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits,
unless requested in writing by such Holder or any managing
underwriter and then only to the person who so requested).
(g) Deliver to each Holder and the underwriters,
if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of Prospectus) and each
amendment or supplement thereto as such persons may request;
and, unless the Corporation shall have given notice to such Holder
or underwriter pursuant to Section 5(c)(v) hereof, the Corporation
hereby consents to the use of such Prospectus, and each amendment
or supplement thereto, by each of the selling Holders of Registrable
Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
use all reasonable efforts to register or qualify, or cooperate with
the Holders of Registrable Securities to be sold or tendered or the
underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder or underwriter
reasonably requests in writing, keep each such registration or
qualification (or exemption therefrom) effective during the period
the Registration Statement is required to be kept effective and do
any and all other acts or things legally necessary to enable the
disposition in such jurisdictions of the Registrable Securities covered
by the Registration Statement; provided, however, that the Corporation
shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or subject the
Corporation to any tax in any such jurisdiction where it is not
then so subject.
(i) In connection with any sale or transfer of
Registrable Securities that will result in such securities no
longer being Registrable Securities, cooperate with the Holders
and the managing underwriters, if any, to (1) facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold (unless the same shall be in book-entry form),
which certificates shall not bear any restrictive legends, unless
required by applicable securities laws, shall bear a CUSIP number
different from the CUSIP number for the Registrable Securities and
shall be in a form eligible for deposit with the Depositary Trust
Corporation, and (2) enable such Registrable Securities to be in
such denominations and registered in such names as the managing
underwriters, if any, or Holders may request at least two Business
Days prior to any sale of Registrable Securities.
(j) Use best efforts to cause the offering of the Registrable
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities within
the United States as may be necessary to enable the Holder or managing
underwriter, if any, to consummate the disposition of such Registrable
Securities; provided, however, that the Corporation shall not be required
to register the Registrable Securities in any jurisdiction that would
require the Corporation to qualify to do business in any jurisdiction
where it is not then so qualified, subject it to general service of
process in any such jurisdiction where it is not then so subject or
subject the Corporation to any tax in any such jurisdiction where it
is not then so subject.
(k) Upon the occurrence of any event contemplated by
Section 5(c)(v) hereof, as expeditiously as possible, prepare a
supplement or amendment, including, if appropriate, a post-effective
amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will
not contain 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, in light of the circumstances under which
they were made, not misleading.
(l) Prior to the effective date of the Registration Statement
relating to the Registrable Securities, to provide a CUSIP number for
the Registrable Securities to be sold pursuant to the Registration
Statement.
(m) Enter into such agreements (including any underwriting
agreements in form, scope and substance as may be reasonably requested
and as are customary in underwritten offerings) and take all such
other appropriate actions in connection therewith (including those
reasonably requested by the managing underwriters, if any, or the
Holders of a majority in interest of the Registrable Securities being sold)
in order to expedite or facilitate the sale of such Registrable
Securities, including, without limitation, reasonable participation of
senior management in a "road show." In connection with any underwritten
offering, the Corporation will:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters, if any,
with respect to the business of the Corporation and its Subsidiaries
(including with respect to businesses or assets acquired or to be
acquired by any of them), and the Registration Statement, Prospectus
and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings,
and confirm the same if and when requested;
(ii) obtain, as may reasonably be required, opinions of
counsel to the Corporation (which may include in-house counsel) and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any), addressed to each selling Holder of
Registrable Securities and each of the underwriters, if any,
covering the matters customarily covered in opinions requested
in underwritten offerings (including any such matters as may be
reasonably requested by such underwriters);
(iii) obtain, as may reasonably be required, customary
"cold comfort" letters and updates thereof from the independent
certified public accountants of the Corporation (and, if necessary,
any other independent certified public accountants of any Subsidiary
of the Corporation or of any business acquired by the Corporation
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed (where
reasonably possible) to each selling Holder of Registrable Securities
and each of the underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings;
and
(iv) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in interest
of the Registrable Securities being sold or the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant to clause (i) of this
Section 5(m) and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Corporation;
(n) Make available for inspection by a representative of the
Holders of Registrable Securities being sold, any underwriter
participating in any such disposition of Registrable Securities, if any,
and any attorney, consultant or accountant retained by such selling
Holders or underwriter, at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Corporation and its
Subsidiaries (other than records and documents that the Corporation
and its Subsidiaries agreed contractually not to disclose and the
disclosure of which would violate any such contractual agreement)
as they may reasonably request, and cause the officers, directors,
agents and employees of the Corporation and its Subsidiaries to
supply all information (other than information that the Corporation
and its Subsidiaries agreed contractually not to disclose and the
disclosure of which would violate any such contractual agreement)
in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection
with such Registration Statement and as shall be reasonably necessary
to enable such persons to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Holders and the other
parties thereto by one counsel designated by and on behalf of such
Holders and other parties.
(o) Use all reasonable efforts to cause any
Registrable Securities included in the registration, to the
extent such Registrable Securities are not already so listed, to
be admitted for trading on the NYSE (or such other exchange
or automated trading system as shall be the primary trading system
or exchange for the Common Stock).
(p) Have the right, if the Board of Directors of the
Corporation, in its good faith judgment, determines that any
registration of shares of Common Stock should not be made or
continued because it would materially interfere with any material
financing, acquisition, corporation reorganization, merger, or other
transaction involving the Corporation or any of its Subsidiaries,
or would require premature disclosure of material non-public
information (a "Valid Business Reason"): (i) to postpone filing
a Registration Statement until such Valid Business Reason no
longer exists, but in no event for more than 180 days, and (ii)
to cause any Registration Statement that has already been filed
to be withdrawn and its effectiveness terminated or to postpone
amending or supplementing such Registration Statement until such
Valid Business Reason no longer exists, but in no event for more
than 90 days (the "Postponement Period"); provided, however,
that in no event shall the Corporation be permitted to postpone
or withdraw a Registration Statement within 12 months after the
expiration of the most recent Postponement Period.
(q) Have the right to require each Holder of any
Registrable Securities as to which any registration is being
effected to furnish to the Corporation such information regarding
such Holder and the distribution of such securities as the
Corporation may from time to time reasonably request in writing
and as shall be required by law in connection therewith. Each
such Holder agrees to furnish promptly to the Corporation all
information required to be disclosed in order to make the
information previously furnished to the Corporation by such
Holder not materially misleading. The Corporation agrees not
to file or make any amendment to any Registration Statement with
respect to any Registrable Securities, or any amendment of or
supplement to the Prospectus used in connection therewith, which
refers to any seller of any securities covered thereby by name,
or otherwise identifies such seller as the holder of any securities
of the Corporation, without the consent of such seller, such consent
not to be unreasonably withheld, except that no such consent
shall be required for any disclosure that is required by law.
By the acquisition of Registrable Securities, each Holder shall
be deemed to have agreed that upon receipt of any notice from
the Corporation pursuant to Section 5(c) or 5(p), such Holder
will promptly discontinue such Holder's disposition of Registrable
Securities pursuant to the Registration Statement covering such
Registrable Securities until such Holder shall have received:
(i) in the case of Section 5(c), notice from the Corporation that
such Registration Statement has been amended, and copies of the
supplemented or amended Prospectus, as contemplated by Section 5(c)(i);
or (ii) in the case of Section 5(p), the time period specified
has elapsed or such Holder has received notice from the Corporation
that the Postponement Period has been terminated. If so directed
by the Corporation, each Holder will deliver to the Corporation
(at the Corporation's expense) all copies, other than permanent file
copies, in such Holder's possession of the Prospectus covering such
Registrable Securities at the time of receipt of such notice. In the
event that the Corporation shall give any such notice, the period
mentioned in Section 5(b) shall be extended by the number of days
during the period from and including the date of the giving of such
notice to and including the date when each seller of any Registrable
Securities covered by such Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by
Section 5(c)(i).
Section 6. Indemnification.
(a) The Corporation agrees to indemnify and hold
harmless each Holder of Registrable Securities, such Holder's
Affiliates, and their respective officers, directors, employees,
representatives and agents and each Person, if any, who controls any
Holder of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any and all loss, liability, claim or damage arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this indemnity agreement
shall not apply to any loss, liability, claim or damage arising out
of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Corporation by or on behalf of
such Holder of Registrable Securities (which also acknowledges
the indemnity provisions herein) or any person, if any, who
controls any such Holder of Registrable Securities expressly for
use in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto); provided, further, that this indemnity
agreement shall not apply to any loss, liability, claim or
damage if the Holder fails to deliver at or prior to the
written confirmation of sale, the most recent Prospectus, as amended
or supplemented, and such Prospectus, as amended or supplemented,
would have corrected such untrue statement or omission or alleged
untrue statement or omission of a material fact (provided that
the Corporation has delivered to such Holder, or otherwise given
notice to such Holder of the existence of, such most recent
Prospectus, as supplemented or amended). Any amounts advanced
by the Corporation to an indemnified party pursuant to this Agreement
shall be returned to the Corporation if it shall be finally
determined in a judgment by a court of competent jurisdiction
not subject to appeal, that such indemnified party was not
entitled to indemnification.
(b) In connection with the preparation of the
Registration Statement in which a Holder of Registrable
Securities is participating in furnishing information relating
to such Holder of Registrable Securities to the Corporation for
use in such Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto, each
such Holder agrees, severally and not jointly, to indemnify
and hold harmless any other Holders of Registrable Securities,
the Corporation, its Affiliates, officers, directors,
employees representatives and agents and each Person, if any, who
controls such other Holders or the Corporation within the meaning
of either such Section, against any and all loss, liability,
claim or damage described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement
(or any amendment thereto), or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Corporation by or on behalf of such Holder
of Registrable Securities (which also acknowledges the
indemnity provisions herein) or any person, if any, who
controls any such Holder of Registrable Securities expressly
for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account
of this indemnity agreement. The indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) representation of both parties
by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses
of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for
(a) the fees and expenses of more than one separate firm (in
addition to any local counsel), for each of the Carlyle Holders
and Xxxx Holders, and all Persons, if any, who control the
Holders of Registrable Securities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act, collectively (unless representation of all Holders and such
parties by the same counsel would be inappropriate due to actual
or potential differing interests between or among them), and
(b) the fees and expenses of more than one separate firm
(in addition to any local counsel), for the Corporation and
each Person, if any, who controls the Corporation within the
meaning of either such Section, and that all fees and expenses
payable under (a) and (b) above shall be reimbursed as they are
incurred. In the case of any such separate firm for the Holders of
Registrable Securities, and control persons of the Holders of
Registrable Securities, such firm shall be designated by the
Requesting Holders and shall be reasonably acceptable to the
Corporation. In the case of any such separate firm for the
Corporation and control persons of the Corporation, such firm
shall be reasonably acceptable to the Holders of a majority in
interest of the Registrable Securities. So long as it is
participating in the defense of the indemnified party, the
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent (which consent
shall not be unreasonably withheld or delayed), but if settled
with such consent or if there be a final non-appealable judgment
for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld or
delayed), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this
Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party. No indemnified
party shall, without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld or delayed),
settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 (whether or
not the indemnified parties are actual or potential parties thereto).
(d) If the indemnification to which an indemnified party is
entitled under this Section 6 is for any reason unavailable to or
insufficient although applicable in accordance with its terms to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such
proportion as is appropriate to reflect the relative fault of
the indemnifying party or parties on the one hand and of the
indemnified party on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Corporation on the one hand and
the Holders of the Registrable Securities on the other hand
shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Corporation or by the Holder of the
Registrable Securities and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 6(d) were determined by
pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to
above in this Section 6(d). The aggregate amount of losses,
liabilities, claims, damages, and expenses incurred by an
indemnified party and referred to above in this Section 6(d) shall
be deemed to include any out-of-pocket legal or other expenses
reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or
alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, no Holder
shall be required to indemnify or contribute any amount in excess
of the amount by which the amount actually received by such Holder
for the Registrable Securities sold by such Holder exceeds the
amount of any damages that such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
The remedies provided in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available
to any indemnified party at law or in equity.
For purposes of this Section 6(d), each Person, if any, who
controls any Holder of Registrable Securities within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Holder, and each
Person, if any, who controls the Corporation within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Corporation.
No party shall be liable for contribution with respect to any
action, suit, proceeding or claim settled, compromised, or with
respect to which the party requesting contribution consented to
the entry of a judgment, without such party's written consent, which
consent shall not be unreasonably withheld or delayed.
(e) The Corporation may require as a condition to
including the Registrable Securities in the Registration
Statement, and to entering into any underwriting agreement
with respect thereto, that the Corporation shall have
received an undertaking from the Holder and such underwriter
to comply with the provisions of this Section 6.
(f) The agreements contained in this Section 6 shall
survive the transfer or sale of the Registrable Securities and
shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
Section 7. Information Requirements.
(a) The Corporation agrees that, if at any time the
Corporation is not subject to the reporting requirements of the
Exchange Act, it will cooperate with any Holder of Registrable
Securities and use reasonable efforts to take such further
reasonable action as any Holder of Registrable Securities may
request in writing to enable such Holder to sell Registrable
Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 and Rule 144A
under the Securities Act (or any similar rule or regulation
hereafter adopted by the SEC) and customarily taken in connection
with sales pursuant to such exemptions, including, without
limitation, making available adequate current public information
within the meaning of paragraph (c)(2) of Rule 144 and
delivering the information required by paragraph (d) of Rule 144A.
Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Corporation to register any of its securities
under any section of the Exchange Act.
(b) The Corporation shall file reports required to be
filed by it under the Exchange Act and the rules of the NYSE or
any other securities exchanges or markets on which the Common Stock
is listed or quoted.
Section 8. Underwritten Registration. If any of the
Registrable Securities covered by a Registration Statement filed
in connection with Sections 2(a) or 2(b) are to be sold in an
underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering
will be investment bankers of recognized national standing selected
by the Requesting Holders, subject to the consent of the Corporation,
which will not be unreasonably withheld or delayed. No person may
participate in any underwritten registration hereunder unless
such person (a) agrees to sell such person's Registrable Securities
on the basis reasonably provided in any underwriting arrangements
approved by the Requesting Holders; and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up agreements and other documents reasonably
required under the terms of such underwriting arrangements.
Notwithstanding any other provision of this Agreement, if the
underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten,
the number of shares that may be included in the underwriting shall
be allocated as set forth in Sections 2(f) and 3(b) above.
Section 9. Miscellaneous.
(a) No Inconsistent Agreements. The Corporation has not
entered into or shall not enter into any agreement that is
inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted
to the holders of the Corporation's other issued and outstanding
securities under any such agreements.
(b) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to
be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the registration
rights granted by the Corporation with respect to the
Registrable Securities. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred
to herein, with respect to the registration rights granted by the
Corporation with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and undertakings among
the Parties with respect to such registration rights, including the
Registration Rights Agreement dated February 21, 1990 and the
Registration Rights Agreement dated June 9, 1999.
(c) No Adverse Action Affecting the Registrable
Securities. The Corporation will not take any action with respect
to the Registrable Securities which would adversely affect the ability
of any of the Holders to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof, may not be given, without
the written consent of the Corporation and Holders of (i) a
majority in interest of Registrable Securities held by Xxxx Holders
and (ii) a majority in interest of Registrable Securities held by
Carlyle Holders, provided, however, that, for the purposes of this
Agreement, Registrable Securities that are held, directly or
indirectly, by either the Corporation or an Affiliate of the
Corporation are not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the
rights of Holders whose Registrable Securities are being sold
pursuant to the Registration Statement with respect to the
offering of Registrable Securities pursuant to such Registration
Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in
interest of the Registrable Securities being sold by such Holders
pursuant to such Registration Statement, provided, however, that
the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable
Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall
be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 9(d),
whether or not any notice, writing or marking indicating
such amendment, modification, supplement, waiver or consent
appears on the Registrable Securities or is delivered to such
Holder.
(e) Notices. All notices and other communications
provided for herein or permitted hereunder shall be made in
writing by hand-delivery, courier guaranteeing overnight delivery,
certified first-class mail, return receipt requested, or telecopy and
shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one Business
Day after being deposited with such courier, if made by overnight
courier or (iv) on the date indicated on the notice of receipt,
if made by first-class mail, to the parties as follows:
(i) If to the Corporation to:
URS Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
With a copy to:
Xxxxxx Godward LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
(ii) If to Xxxx or a Xxxx Holder to:
Xxxx Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile No. (000) 000-0000
Attention: Xxxx X. Xxxxxx
(iii) If to Carlyle or a Xxxxxxx Xxxxxx to:
The Carlyle Group
0000 Xxxxxxxxxxxx Xxx., X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxx & Xxxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
(f) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors assign and transferees. Any Holder may assign
its rights hereunder in whole or in part to an Affiliate or to a
Distributee or to other successors, assigns and transferees of such
Holder; provided that such Affiliate, Distributee or successor,
assignee or transferee expressly agrees to be bound by this Agreement
by written supplement. This Agreement shall survive any transfer of
Registrable Securities to and shall inure to the benefit of each Holder
and any Affiliate, Distributee or such other successors, assigns and
transferees of such Holder.
(g) Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware,
as applied to contracts made and performed within the State of Delaware
without regard to principles of conflicts of law.
(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction, it being intended that all of
the rights and privileges of the parties shall be enforceable to
the fullest extent permitted by law.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof. All references made in this Agreement
to "Section" and "paragraph" refer to such Section or paragraph
of this Agreement, unless expressly stated otherwise.
(j) Specific Performance. The Corporation agrees that,
to the extent permitted by law, (i) the obligations imposed on
them in this Agreement are special, unique and of an
extraordinary character, and that in the event of a breach by
the Corporation would not be an adequate remedy; and (ii) the
Holders shall be entitled to specific performance and injunctive
and other equitable relief in addition to any other remedy to which
they may be entitled at law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, in two or more counterparts, each
of which shall be deemed to be an original and all of which
collectively shall be deemed to be one and the same instrument,
as of the date first written above.
CORPORATION: URS CORPORATION
By:__________________________________
Name:________________________________
Title:________________________________
XXXX: XXXX STRATEGIC PARTNERS, L.P.
By: XXXX STRATEGIC GP, L.L.C.,
its general partner
By:_____________________________
N. Xxxxx Xxxx, Managing Member
XXXX CAPITAL PARTNERS, L.P.
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By:_____________________________
N. Xxxxx Xxxx, Managing Partner
CARLYLE: CARLYLE-EG&G, L.L.C.
By:_________________________________
Name:_______________________________
Title:________________________________
EG&G TECHNICAL SERVICES
HOLDINGS, L.L.C.
By:_________________________________
Name:_______________________________
Title:________________________________
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