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EXHIBIT 10.1
AMENDED AND RESTATED
REGISTRATION AGREEMENT
This Amended and Restated Registration Agreement is made as of December
29, 1989, by and among PI Parent Corporation, a Delaware corporation (the
"Company"), Citicorp Venture Capital, Ltd., a New York corporation ("CVC"),
Xxxxxx, Xxxxxxx Group Inc., a Delaware corporation ("Xxxxxx"), KP/Hanover
Partners, 1988 L.P., a Delaware limited partnership ("KP/Hanover"), Xxxxx X.
Xxxxxxx ("Xxxxxxx"), Xxxx X. Xxxxx ("Xxxxx"), Xxxxx X. Xxxxxx ("Xxxxxx"),
Xxxxxx Xxxx ("Xxxx"), The Equitable Life Assurance Society of the United States
("Equitable"), Equitable Deal Flow Fund, L.P. ("Deal Flow Fund") and Tandem
Insurance Group, Inc. ("Tandem Group") and the individuals named on Schedule I
hereto (hereinafter referred to as the "Executives"). Certain capitalized terms
not otherwise defined herein are defined in Section 10 below.
WHEREAS, CVC, Kidder, Wegmann, Xxxxx and the Company entered into a
Stock and Note Purchase Agreement, a Registration Agreement and a Stockholder
Agreement, each dated as of September 14, 1988 (the "Investor Purchase
Agreement," the "Registration Agreement" and the "Stockholder Agreement,"
respectively) as amended by that certain Amendment No. 1 Agreement, dated as of
November 30, 1988, by and among such parties ("Amendment No. 1"), and as
further amended by that certain Amendment No. 2 Agreement, dated as of March 1,
1989, by and among such parties and Xxxxxx, pursuant to which Xxxxxx purchased
certain shares of Common Stock and Preferred Stock and certain of the Company's
Notes ("Amendment No. 2") and as yet further amended by that certain Purchase
Agreement and Amendment to Prior Agreements dated as of November 22, 1989, by
and among such parties and Xxxx, pursuant to which Xxxx purchased certain
shares of Common Stock and Preferred Stock and certain of the Company's Notes
("Amendment No. 3") (as so amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0, and
Amendment No. 3, the "Existing Investor Purchase Agreement", the "Existing
Registration Agreement" and the "Existing Stockholder Agreement,"
respectively). Xxxxxx transferred a portion of its interest in the capital
stock of the Company to KP/Hanover pursuant to an assignment effective November
30, 1988 and in connection therewith, KP/Hanover became a party to the
Stockholder Agreement pursuant to an agreement dated as of November 30, 1988
between KP/Hanover and the Company;
WHEREAS, the Certificate of Incorporation of the Company has been
amended in order to, among other things, increase the number of shares of stock
which the Company has authority to issue and authorize 100,000 shares of Class
D Common Stock, par value $0.01 per share ("Class D Common");
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WHEREAS, the Company desires to sell and the Equitable Investors desire
to purchase an aggregate of 7,323.3 shares of Class D Common (the "Shares"),
pursuant to the Stock Purchase Agreement dated as of December 29, 1989 by and
among the Company and the Equitable Investors (the "Stock Purchase Agreement");
and
WHEREAS, the parties hereto desire to amend and restate the
Registration Agreement in order to, among other things, add the Equitable
Investors as parties thereto and provide the registration rights set forth in
this Agreement. Except as otherwise indicated, capitalized terms used herein
are defined in Section 10 hereof.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements of the parties contained in this document, the parties
hereto agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time, the holders of
a majority of the outstanding Registrable Securities may request registration
under the Securities Act of all or any portion of their Registrable Securities
on Form S-1 or any similar long-form registration ("Long-Form Registrations"),
or on Form S-2 or S-3 or any similar short-form registration ("Short-Form
Registrations"), if available, provided, that if the Company has not previously
filed a registration statement on Form S-1 (or any successor form) which has
become effective pursuant to the Securities Act covering the sale of shares of
its common stock (an "Initial Public Offering"), such majority shall include
the holders of a majority of the Investor Registrable Securities.
Notwithstanding the foregoing, if there has been no Initial Public Offering
within five years after the date of this Agreement, holders of at least 60
percent of the outstanding Registrable Securities not held by Citicorp Venture
Capital, Ltd. or its affiliates will have the right to request a Long-Form
Registration hereunder (the "Standby Registration Right"). Within ten days
after receipt of any such request, the Company will give written notice of such
requested registration to all other holders of Registrable Securities and will
include in such registration all Registrable Securities with respect to which
the Company has received written requests from any holder of Registrable
Securities for inclusion therein within 15 days after the receipt of the
Company's notice. All registrations requested pursuant to this Section 1(a) or
Section 1(d) are collectively referred to herein as "Demand Registrations."
(b) LONG-FORM REGISTRATIONS. Subject to Section 1(a) above,
the holders of Registrable Securities will be entitled
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to request three Long-Form Registrations (in addition to any demand
registration under Section 1(d)), provided that the aggregate offering price of
Registrable Securities requested to be registered in any Long-Form Registration
must equal or exceed $7.5 million if such Demand Registration is an Initial
Public Offering (other than pursuant to the Standby Registration Right), and $4
million in the case of any other Long-Form Registrations. A registration will
not count as one of the permitted Long-Form Registrations until it has become
effective (unless such Long-Form Registration has not become effective due
solely to the fault of the holders requesting such registration) and unless the
holders of Registrable Securities are able to register and sell at least 90% of
the Registrable Securities requested to be included in such registration;
provided that in any event the Company will pay all Registration Expenses in
connection with any registration initiated as a Long-Form Registration. All
Long-Form Registrations shall be underwritten registrations.
(c) SHORT-FORM REGISTRATIONS. In addition to the Long-Form
Registrations provided pursuant to Section 1(b), the holders of at least 15% of
the outstanding Registrable Securities will be entitled to request an unlimited
number of Short-Form Registrations; provided that the aggregate offering price
of Registrable Securities requested to be registered in any Short-Form
Registration must equal or exceed $500,000. Demand Registrations will be
Short-Form Registrations whenever the Company is permitted to use any
applicable short form. The Company will use its best efforts to make Short-Form
Registrations on Form S-3 available for the sale of Registrable Securities once
it has become subject to the reporting requirements of the Securities Exchange
Act.
(d) EQUITABLE INVESTORS REQUEST FOR REGISTRATIONS. In the event
that any of the Equitable Investors exercise their right to require the Company
to repurchase all of the Warrants in accordance with the terms of Section 6 of
the Stock Purchase Agreement and the Company fails, for any reason whatsoever
or for no reason, to make the payments required thereunder in the manner and at
the time required, or otherwise fails to comply with the provisions thereof
(disregarding for such purposes the last sentence of such Section 6), the
Majority of the Equitable Investors holding Registrable Securities may request
in writing that the Company effect the registration under the Securities Act of
all or part of such holder's or holders' Registrable Securities, specifying in
the request the number and type of Registrable Securities to be registered by
each such holder and the intended method of disposition thereof (such notice is
hereinafter referred to as an "Equitable Holder Request"). Upon receipt of such
Equitable Holder Request, the Company will promptly give written notice of such
requested registration to
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all other holders of Registrable Securities, which other holders shall have the
right to include the Registrable Securities held by them in such registration,
and thereupon the Company will, as soon as reasonably possible, use its best
efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by such Equitable Investors; and
(ii) all other Registrable Securities which the Company has been
requested to register by any other holder thereof by written request given
to the Company within 30 calendar days after the giving of such written
notice by the Company, all to the extent necessary to permit the
disposition (in accordance with the intended method thereof as aforesaid)
of the Registrable Securities so to be registered;
provided, however, that the Company shall not be obligated to file a
registration statement relating to any Equitable Holder Request under this
Section 1(d) unless the Company shall have received requests for such
registration with respect to all of the Shares then held by the Equitable
Investors.
Each Equitable Investor agrees, on behalf of itself and its successors and
assigns, that upon written request of the Majority of the Equitable Investors,
it will participate in any Demand Registration initiated under this Section
1(d) in the same manner and to the same extent as the Equitable Investors
constituting such Majority of the Equitable Investors.
Notwithstanding the foregoing provisions of Section 1(d), the Company
shall not be obligated to file more than one registration statement pursuant to
this Section 1(d).
(e) Priority on Demand Registrations. The Company will not include in any
Demand Registration any securities which are not Registrable Securities without
the written consent of the holders of a majority of the Registrable Securities
requesting such registration. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities and other securities
requested to be included exceeds the number of Registrable Securities and other
securities which can be sold in such offering, the Company will include in such
registration (A) first, the Registrable Securities requested to be included pro
rata on the basis of the number of Registrable Securities of the applicable
type owned by each such holder and (B) second, other securities (if any)
permitted to be included in
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such registration; provided, however, for any Demand Registration made pursuant
to Section 1(d), the Company will include in such registration (x) first, all of
the Registrable Securities requested to be included by the Equitable Investors
(pro rata, on the basis of the respective numbers of shares of Warrant Stock
held, or subject to Warrants held, by the Equitable Investors) and (y) then as
set forth in subclauses (A) and (B) above.
(f) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Long-Form Registration within four months after the
effective date of a previous registration initiated as a Demand Registration or
a registration in which the holders of Registrable Securities were given
piggyback rights pursuant to Section 2. The Company may postpone for up to three
months (but not more than once with respect to any registration) the filing or
the effectiveness of a registration statement for a Demand Registration if (i)
the Company determines in good faith that such Demand Registration might
reasonably be expected to have an adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any acquisition of assets or
stock (other than in the ordinary course of business) or any merger,
consolidation, tender offer or similar transaction or (ii) the Board determines
in good faith that to effect the registration in the time requested by the
holders of Registrable Securities would have a material adverse effect on the
Company; provided that in any such event the holders of a majority of the type
of Registrable Securities requesting such Demand Registration will be entitled
to withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as a Demand Registration.
(g) Selection of Underwriters. The holders of a majority of the
Registrable Securities requesting any Demand Registration will have the right to
select the investment banker(s) and manager(s) to administer the applicable
offering and to approve underwriting arrangements, subject to the Company's
approval, which will not be unreasonably withheld. The parties acknowledge that
Xxxxxx, Peabody & Co. Incorporated has certain rights to serve as underwriter in
connection with the Company's registration statements through September 14, 1990
pursuant to a letter agreement with PI Holdings Inc., a Delaware subsidiary and
a wholly owned subsidiary thereof, dated August 9, 1988.
(h) Other Registration Rights. Except as provided in this Agreement,
the Company will not grant to any Person the right to request the Company to
register any equity securities of the Company, or any securities convertible
into or exercisable or exchangeable for such securities, without the
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written consent of the holders of a majority of the outstanding Registrable
Securities; provided, that the Company may grant rights to other Persons to
participate in Piggyback Registrations so long as such rights are subordinate
to the rights of the holders of Registrable Securities with respect to such
Piggyback Registrations.
(i) Registration Expenses. The Company will pay all Registration
Expenses in connection with any registration initiated as a Demand Registration;
provided, that, at the option of the Company, holders of securities other than
Registrable Securities permitted to be included in any Demand Registration may
be requested to pay their share of the Registration Expenses in connection with
such Demand Registration.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the
Company will give prompt written notice (in any event within five business days
after its receipt of notice of any exercise of other demand registration
rights) to all holders of Registrable Securities of its intention to effect
such a registration and, subject to subsections 2(c) and (d) below, will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 30 days
after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rate among the respective holders thereof on the basis of the
number of Registrable Securities owned by such holders, and (iii) third, other
securities requested to be included in such registration.
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(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities other than Registrable Securities and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, the Company will include in such registration (i) first,
the securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, pro rata among the respective holders thereof on the basis of the
number of such other securities and/or Registrable Securities owned by such
holders, and (ii) second, other securities requested to be included in such
registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering and any underwriting arrangements must be approved by the holders
of a majority of the Registrable Securities included in such Piggyback
Registration. Such approval will not be unreasonably withheld.
(f) Other Registration. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2 and if such previous registration has
not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or any
securities convertible into or exercisable or exchangeable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least six months has elapsed from the effective
date of such previous registration.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution of equity securities of the Company, or any
securities convertible into or exercisable or exchangeable for such securities,
during the seven days prior to and the 90-day period beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration in which Registrable Securities are included (except as part of
such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
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(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exercisable or exchangeable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing such registered public offering otherwise
agree, and ii) to cause each holder of 3 percent or more (on a fully-diluted
basis) of its equity securities, or any securities convertible into or
exercisable or exchangeable for such securities, purchased from the Company at
any time after the date of this Agreement (other than in a registered public
offering), if such holder is not or does not become a party to this Agreement,
to agree not to effect any public sale or distribution of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. REGISTRATION PROCEDURES.
(i) Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof (including the registration of Class B Common, Class C
Common or Class D Common held by a holder of Registrable Securities requesting
registration as to which the Company has received reasonable assurances that
only Registrable Securities will be distributed to the public) and pursuant
thereto the Company will as expeditiously as possible:
(ii) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective; provided that, before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company will, if requested by any
holder of Registrable Securities covered by such registration statement,
furnish to any counsel selected by such holder copies for review of all such
documents proposed to be filed;
(iii) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in
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connection therewith as may be necessary to keep such registration statement
effective for a period of not less than six months (or (i) in the case of an
underwritten registration, for such shorter period as may be agreed to by the
underwriters managing such registration and (ii) in the case of any other
registration and (ii) in the case of any other registration, if earlier, until
the sale of all securities covered by such registration or the termination of
the distribution pursuant to such registration) and comply with the provisions
of the Securities Act with respect to the disposition of all securities covered
by such registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement;
(iv) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(v) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
as any seller reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(vi) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading;
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(vii) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(viii) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(ix) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities (including effecting a recapitalization of the
Common Stock, including a stock split or a combination of shares);
(x) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(xi) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided, in the case of
a Piggyback Registration, that such Registrable Securities constitute at least
10% of the securities covered by such registration statement);
(xii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission and make
generally available to any seller, in each case as soon as practicable, but not
later than 45 calendar days after the close of the period covered thereby (90
calendar days in case the period covered corresponds to a fiscal year of the
Company), an earnings statement of the Company which will satisfy the
provisions of Section 11(a) of the Securities Act; and
(xiii) execute and deliver all instruments and documents and take such
other actions and obtain such certificates and opinions as holders of a
majority of the
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Registrable Securities being sold reasonably request in order to effect an
underwritten public offering of such Registrable Securities.
(a) Each holder of Registrable Securities will, upon receipt of any
notice from the Company of the happening of any event of the kind described in
subsection 4(a)(v), forthwith discontinue disposition of the Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subsection 4(a)(v).
(b) In lieu of converting any share of Class D Common into Class A
Common prior to or simultaneously with the filing or the effectiveness of any
registration statement filed pursuant to Section 1 or 2, the holder of Class D
Common shall be permitted to sell such Class D Common to the underwriter of the
offering being registered upon the undertaking of such underwriter to convert
such Class D Common before making any distribution pursuant to such registration
statement and to include the Class A Common issued upon such conversion among
the securities being offered pursuant to such registration statement. The
Company agrees to cause such Class A Common to be included among the securities
being offered pursuant to such registration statement to be issued within such
time as will permit the underwriter to make and complete the distribution
contemplated by the underwriting.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions other than those
relating to Registrable Securities being offered by the Company) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne as provided in this Agreement, except
that the Company will, in any event, pay its internal expenses (including
without limitation all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing the securities to be registered on each securities exchange on
which similar securities issued by the Company are then listed.
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(b) In connection with each Long-Form Registration, each Short-Form
Registration and each Piggyback Registration, the Company will reimburse the
holders of Registrable Securities covered by such registration for the
reasonable fees and disbursements of one counsel chosen by the holders of a
majority of such Registrable Securities.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
the Equitable Investors, Equitable Capital Management Corporation, a Delaware
corporation and each holder or former holder of Registrable Securities, its
officers and directors, and each Person that controls such holder (within the
meaning of the Securities Act) (collectively, the "Indemnified Parties")
against all losses, claims, damages, liabilities and expenses caused by any
untrue and alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Indemnified Party
expressly for use therein or by such Indemnified Party's failure to deliver a
copy of the final prospectus or any amendments or supplements thereto after the
Company has furnished such Indemnified Party with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such Indemnified Parties underwriters, their officers and directors
and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder and each other
Indemnified Parties will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law,
will indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue and
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
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misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
holder; provided that the obligation to indemnify will be several, not joint and
several, among such holders of Registrable Securities and the liability of each
such holder of Registrable Securities will be limited to an amount equal to the
net proceeds (after deducting underwriting discounts and expenses) received by
such holder from the sale of Registrable Securities sold by such holder pursuant
to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and other of such indemnified parties with respect to such
claim in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company and each seller of Registrable Securities shall provide for the
indemnification provided for under this Agreement with appropriate modifications
in any underwriting agreement with respect to any required registration or other
qualification of securities under any federal or state law or regulation or
governmental authority.
7. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled
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hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
8. Contribution. In order to provide for just and equitable contribution
in circumstances under which the indemnity contemplated by Section 6 is for any
reason not available, the parties required to indemnify by the terms thereof
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company, any seller of Registrable Securities and one or more of the
underwriters, except to the extent that contribution is not permitted under
Section 11(f) of the securities Act. In determining the amounts which the
respective parties shall contribute, there shall be considered the relative
benefits received by each party from the offering of the Registrable Securities
(taking into account the portion of the proceeds of the offering realized by
each), the parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity to correct
and prevent any statement or omission and any other equitable considerations
appropriate under the circumstances. The Company and each Person selling
securities agree with each other that no seller of Registrable Securities shall
be required to contribute any amount in excess of the amount such seller would
have been required to pay to an indemnified party if the indemnity under
Section 6 were available. The Company and each such seller agree with each
other and the underwriters of the Registrable Securities, if requested by such
underwriters, that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the underwriters
were treated as one entity for such purpose) or for the underwriters' portion
of such contribution to exceed the percentage that the underwriting discount
bears to the initial public offering price of the Registrable Securities. For
purposes of this Section 8, each Person, if any, who controls an underwriter
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as such underwriter, and each director and each officer
of the Company who signed the registration statement, and each Person, if any,
who controls the Company or a seller of Registrable Securities within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company or a seller of Registrable Securities, as the case
may be.
9. Rule 144. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company
- 14 -
15
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file such reports,
it will, upon the request of any holder of Registrable Securities, make publicly
available other information), and it will take such further action as any holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell shares of Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
10. Definitions.
"Class A Common" means the Class A Common Stock, $.01 par value per
share, of the Company.
"Class B Common" means the Class B Common Stock, $.01 par value per
share, of the Company.
"Class C Common" means the Class C Common Stock, $.01 par value per
share, of the Company.
"Class D Common" means the Company's Class D Common Stock, par value
$.01 per share.
"Common Stock" means collectively the Class A Common, the Class B
Common, the Class C Common and the Class D Common.
"Equitable Investors" means The Equitable Life Assurance Society of
the United States, Equitable Deal Flow Fund, L.P. and Tandem Group Life
Insurance Company and each transferee of such Person who holds the Warrants or
becomes a stockholder in accordance with the terms of the Amended and Restated
Stockholder Agreement dated as of December 29, 1989 by and among the Company and
the stockholders of the Company.
"Executive Stock Agreements" means the Xxxxx Executive Stock Agreement
and any other Executive Stock and Note Purchase Agreement contemplated by the
Existing Investor Purchase Agreement and entered into by the Company and members
of management or other key employees after the date hereof; provided that any
such agreement will be deemed to be an "Executive Stock Agreement" for purposes
hereof (including the definition of "Registrable Securities") only if the party
-15-
16
thereto acquiring Executive Stock (as defined therein) becomes a party to this
Agreement.
"Investor Registrable Securities" means Registrable Securities issued
pursuant to the Existing Investor Purchase Agreement (including any amendments
thereto), or issued or issuable, directly or indirectly, upon conversion or
exercise of such Registrable Securities.
"Majority of the Equitable Investors" means at any time the holders of a
majority of the outstanding Shares then held by all of the Equitable Investors.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or a government or any
department or agency thereof.
"Registrable Securities" means (i) any Class A Common issued pursuant to
the Existing Investor Purchase Agreement (including any amendments thereto) or
any Executive Stock Agreement, (ii) any Class A Common issued or issuable,
directly or indirectly, upon exercise of any warrants or other rights to acquire
Common Stock, or upon conversion of any Class B Common or Class C Common,
issued pursuant to the Existing Investor Purchase Agreement (including any
amendments thereto) (including any amendment thereto) or any Executive Stock
Agreement, (iii) any shares of Class A Common issued or issuable upon the
conversion of outstanding shares of Class D Common in accordance with the
applicable provisions of the Certificate of Incorporation, and (iv) any Class A
Common issued or issuable, directly or indirectly, with respect to the
securities referred to in clauses (i), (ii) and (iii) by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Registrable
Securities, such securities will cease to be "Registrable Securities" when they
have been sold pursuant to a registration statement that has become effective
under the Securities Act or pursuant to Rule 144 (or any other similar rule in
force) under the Securities Act. For all purposes of this Agreement (including
without limitation any determination as to whether a required percentage of
Registrable Securities has consented to a particular action), a Person will be
deemed to be a holder of outstanding Registrable Securities whenever such Person
has the right to acquire such Registrable Securities (by conversion or
otherwise, but disregarding any legal restrictions upon the exercise of such
right), whether or not such acquisition has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
-16-
17
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent with the
rights granted to the holder of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such
registration (including effecting a stock split or a combination of shares).
(c) Remedies. Any person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended and the Company may take any action
herein prohibited, or omit to take any action herein required to be performed by
it, only if the Company has obtained the written consent of holders of a
majority of the Registrable Securities, and, in the case of amendment or other
action adversely affecting any rights granted to the Equitable Investors or the
holders of Investor Registrable Securities, the consent of the Majority of the
Equitable Investors or the holders of a majority of Investor Registrable
Securities, as appropriate, shall be required to amend this Agreement.
(e) Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
18
(f) Additional Parties. The Company contemplates additional purchases
of the Company's securities by certain management persons and other key
employees, and all parties hereto agree that such purchasers may be added as
parties hereto. Each such purchaser will be entitled to become a party to this
Agreement by executing a counterpart copy hereof, which counterpart copy shall
also be executed by the Company.
(g) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable under any applicable law or rule in any
jurisdiction, such provision will be ineffective only to the extent of such
invalidity, illegality or unenforceability in such jurisdiction, without
invalidating the remainder of this Agreement in such jurisdiction or any
provision hereof in any other jurisdiction.
(h) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all of which taken together will constitute one and the
same Agreement.
(i) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(j) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and the exhibits and schedules
hereto will be governed by the internal law, and not the law of conflicts, of
Delaware.
(k) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally or
mailed by certified or registered mail, return receipt requested and postage
prepaid, to the recipient. Such notices, demands and other communications will
be sent to CVC Kidder, Hynes, Xxxxxxx, Taylor, Webb, the Equitable Investors and
the Company at the respective address indicated below:
To the Company:
PI Parent Corporation
c/o Plantronics, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000-0000
Attention: President
- 18 -
19
To CVC:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
To Xxxxxx:
Xxxxxx, Xxxxxxx Group Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention:
To Xxxxx:
c/o Plantronics, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000-0000
To Xxxxxxx:
Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxxxxx, XX 00000
To Xxxxxx:
Xxxxx X. Xxxxxx
000 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
To Xxxx:
Xxxxxx Xxxx
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
To Equitable:
The Equitable Life Assurance Society
of the United States
c/o Equitable Capital Management Corporation
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporation Finance Department
-19-
20
To Deal Flow Fund:
Equitable Deal Flow Fund, L.P.
c/o Equitable Capital Management Corporation
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporation Finance Department
To Tandem Group:
Tandem Insurance Group, Inc.
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxxx
with a copy to:
Equitable Capital Management Corporation
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxxx
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
(1) Equitable Investors Covenant. If at any time after the date hereof a
Majority of the Equitable Investors shall determine to take any action pursuant
to Sections 1 or 2 with respect to the sale, transfer or other disposition of
the Common Stock held by them in a public offering, then, upon reasonable prior
written notice to the other Equitable Investors, the other Equitable Investors
shall take all actions necessary or appropriate to sell, transfer or otherwise
dispose of concurrently with the Majority of the Equitable Investors and in the
same manner and upon the same terms a proportionate amount of Common Stock held
by each such other Equitable Investor.
-20-
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: [SIG] By:
----------------- -----------------------------------
Its: V.P. Its:
----------------- -----------------------------------
XXXXXX, PEABODY GROUP INC.
By:
-----------------------------------
Its:
-----------------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
-----------------------------------
Its:
-----------------------------------
-----------------------------------
Xxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx Xxxx
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: [SIG] By: [SIG]
------------------ --------------------------
Its: VP Its: Vice President
----------------- -------------------------
XXXXXX, XXXXXXX GROUP INC.
By:
--------------------------
Its:
-------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
--------------------------
Its:
-------------------------
------------------------------
Xxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxxx
------------------------------
Xxxxxx Xxxx
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------ --------------------------
Its: Its:
----------------- -------------------------
XXXXXX, PEABODY GROUP INC.
By: [SIG]
--------------------------
Its:VICE PRESIDENT & TREASURER
--------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By: [SIG]
--------------------------
Its:
-------------------------
------------------------------
Xxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxxx
------------------------------
Xxxxxx Xxxx
24
THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
By: /s/ XXXXXX XXXXXX
---------------------------------
Title: INVESTMENT OFFICER
EQUITABLE DEAL FLOW FUND, L.P.
By: EQUITABLE MANAGED
ASSETS, L.P., as General
Partner
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
as General Partner
By: /s/ XXXXXX XXXXXX
---------------------------------
Title: INVESTMENT OFFICER
TANDEM INSURANCE GROUP, INC.
By: [SIG]
---------------------------------
Title: Vice President
5038C
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------- -------------------------
Its: Its:
------------------------- -------------------------
XXXXXX, XXXXXXX GROUP INC.
By:
-------------------------
Its:
-------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
-------------------------
Its:
-------------------------
/s/ XXXX X. XXXXX
-----------------------------
Xxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxxx
-----------------------------
Xxxxxx Xxxx
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------------ ---------------------------
Its: Its:
----------------------------- --------------------------
XXXXXX, XXXXXXX GROUP INC.
By:
---------------------------
Its:
--------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management
Corporation
Its: General Partner
By:
---------------------------
Its:
--------------------------
------------------------------
Xxxx X. Xxxxx
/s/ XXXXX X. XXXXXX
------------------------------
Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxxx
------------------------------
Xxxxxx Xxxx
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
PI PARENT CORPORATION CITICORP VENTURE CAPITAL, LTD.
By: By:
------------------------------- -----------------------------------
Its: Its:
------------------------------- -----------------------------------
RIDDER, PEABODY GROUP INC.
By:
-----------------------------------
Its:
-----------------------------------
RIDDER, PEABODY GROUP INC.
By:
-----------------------------------
Its:
-----------------------------------
KP/HANOVER PARTNERS 1988, L.P.
By: KP/Hanover Management Corporation
Its: General Partner
By:
-----------------------------------
Its:
-----------------------------------
-----------------------------------
Xxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx Xxxx
28
SCHEDULE I
/s/ XXXX XXXXXXX
----------------------
Xxxx Xxxxxxx
----------------------
Xxxxx Xxxxxxxxx
/s/ XXXXX XXXXXX
----------------------
Xxxxx Xxxxxx
----------------------
Xxxxxxxx Xxxxx
----------------------
Xxxxxx Xxxxxx
/s/ XXXXXX XXX
----------------------
Xxxxxx Xxx
/s/ XXXX TYMOCEKO, JR.
----------------------
Xxxx Tymoceko, Jr.
----------------------
Xxxx Xxxxxxx
----------------------
Xxxxxx Xxxxxxxx
----------------------
Xxxxxx Xxxxxx
----------------------
Xxxxxxx Xxxx
----------------------
Xxxxxx Xxxxxxxxxx
29
/s/ XXXXXXXX XXXX
--------------------------------------
Xxxxxxxx Xxxx
/s/ XXXXX XXXXX
--------------------------------------
Xxxxx Xxxxx
--------------------------------------
Xxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
/s/ XXXXXX XXXX
--------------------------------------
Xxxxxx Xxxx
/s/ XXXXXXX XXXXXXX
--------------------------------------
Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxxx
