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EXHIBIT 10.6
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of November 30,
1999, by and among X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation
(the "Company"), Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P., a Delaware limited
partnership ("BRS"), each of the Persons (as defined herein) executing the BRS
Investor Signature Page attached hereto (each, a "BRS Investor" and
collectively, the "BRS Investors"), each of the stockholders executing an
Executive Signature Page attached hereto or members of management acquiring
Common Stock after the date hereof and executing a joinder hereto in the form
attached as Exhibit A (collectively, the "Executives" and individually an
"Executive") and each of the warrant holders executing a Warrant Holder
Signature Page attached hereto and such other Persons acquiring a Warrant after
the date hereof (collectively, the "Warrant Holders" and individually, a
"Warrant Holder"). Unless otherwise indicated herein, capitalized terms used
herein are defined in Section 1 hereof.
WHEREAS, BRS and the BRS Investors have acquired certain
shares of Common Stock pursuant to the Merger Agreement;
WHEREAS, each Executive acquired beneficial ownership of
certain shares of Common Stock pursuant to the Merger Agreement; and
WHEREAS, each Warrant Holder has acquired or will acquire
certain warrants to acquire certain shares of Common Stock and Preferred Stock.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Definitions. As used herein, the following terms
shall have the following meanings.
"Affiliate" means as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"BRS Registrable Securities" means (i) any Common Stock issued
or issuable to BRS and the BRS Investors on the date hereof or acquired by BRS,
the BRS Investors or any of their respective affiliates or partners after the
date hereof, and (ii) any shares of capital stock of the Company issued or
issuable with respect to the securities referred to in clause (i) by way of a
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dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. For purposes of
this Agreement, a Person will be deemed to be a holder of BRS Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such BRS Registrable Securities (upon conversion or exercise in connection with
a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected. Such securities will cease to be BRS Registrable
Securities when sold pursuant to Rule 144 or any offering registered under the
Securities Act.
"Common Stock" means (i) the Company's Common Stock, par value
$0.01 per share, (ii) any other class or series of the Company's common stock
and (iii) any capital stock of the Company issued or issuable with respect to
the securities referred to in clauses (i) or (ii) by way of stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization.
"Demand Registration" has the meaning set forth in Section
2(c).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Registrable Securities" means (i) any shares of
Common Stock acquired by, or issued or issuable to, the Executives (but only to
the extent that such shares of Common Stock are vested pursuant to the terms of
the Management Stock Purchase Agreement, dated as of the date hereof, by and
among the Company and the Executive), and (ii) any equity securities issued or
issuable directly or indirectly with respect to the securities referred to in
clause (i) above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, including a recapitalization or exchange. As to any particular
Executive Registrable Securities, such securities shall cease to be Executive
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144. For purposes of this
Agreement, a Person will be deemed to be a holder of Executive Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Executive Registrable Securities upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"IPO" means the sale, in the initial underwritten public
offering registered under the Securities Act, of shares of the Company's Common
Stock (other than an offering solely to employees of the Company or its
subsidiaries) where, after such offering, the Common Stock sold in such offering
is subject to being traded in the NASDAQ National Market System or a national
securities exchange.
"Merger Agreement" means the Agreement and Plan of Merger,
dated as of May 17, 1999, between the Company and OSI Acquisition, Inc., a
Delaware corporation, as amended, restated or modified from time to time.
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"Management Stock Agreement" means that certain Management
Stock Agreement dated on even date herewith by and among the Company and the
several stockholders of the company whose names appear on the signature pages
thereto.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section
4(a).
"Preferred Demand Registration" has the meaning set forth in
Section 3(c).
"Preferred Stock" means (i) the Company's Series B Junior
Preferred Stock, par value $0.01 per share, and (ii) any capital stock of the
Company issued or issuable with respect to the securities referred to in clause
(i) by way of stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
"Qualified Public Offering" means the sale, in an underwritten
primary public offering of Common Stock registered under the Securities Act, of
shares of Common Stock which is expected to result in net cash proceeds to the
Company in an aggregate amount of not less than $30 million.
"Registrable Preferred Securities" means the Warrant
Registrable Preferred Securities.
"Registrable Securities" means, collectively, the BRS
Registrable Securities, the Executive Registrable Securities and the Warrant
Registrable Common Securities.
"Registration Expenses" means 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) and other Persons retained by the Company.
"Required Warrant Holders" means, at any time, holders of 25%
of the Warrant Registrable Securities outstanding on the date hereof.
"Rule 144" means Rule 144 under the Securities Act (or any
similar rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant Holder Demand Event" means the earlier to occur of
(i) the 180th day after the date on
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which an IPO is consummated and (ii) other than in connection with an IPO, the
date on which any class of Common Stock is listed on a national securities
exchange or authorized for quotation on the NASDAQ National Market System.
"Warrant Registrable Common Securities" means (i) any Common
Stock issued or issuable to any Warrant Holder on the date hereof or acquired by
any Warrant Holder after the date hereof, and (ii) any shares of capital stock
of the Company issued or issuable with respect to the securities referred to in
clause (i) by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. For purposes of this Agreement, a Person will be deemed to be a
holder of Warrant Registrable Common Securities whenever such Person has the
right to acquire directly or indirectly such Warrant Registrable Common
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected. Such securities will cease to be Warrant Registrable Common Securities
when sold pursuant to Rule 144 or any offering registered under the Securities
Act.
"Warrant Registrable Preferred Securities" means (i) any
Preferred Stock issued or issuable to any Warrant Holder on the date hereof or
acquired by any Warrant Holder after the date hereof, and (ii) any shares of
capital stock of the Company issued or issuable with respect to the securities
referred to in clause (i) by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. For purposes of this Agreement, a Person will be deemed
to be a holder of Warrant Registrable Preferred Securities whenever such Person
has the right to acquire directly or indirectly such Warrant Registrable
Preferred Securities (upon conversion or exercise in connection with a transfer
of securities or otherwise, but disregarding any restrictions or limitations
upon the exercise of such right), whether or not such acquisition has actually
been effected. Such securities will cease to be Warrant Registrable Preferred
Securities when sold pursuant to Rule 144 or any offering registered under the
Securities Act.
"Warrant Registrable Securities" means the Warrant Registrable
Common Securities and the Warrant Registrable Preferred Securities.
2. Demand Registrations for Registrable Securities.
(a) Requests for Registration. Subject to the terms and
conditions of this Agreement, (i) at any time and from time to time, the holders
of a majority of the BRS Registrable Securities may request registration, and
(ii) at any time after the occurrence of a Warrant Holder Demand Event, the
Required Warrant Holders may request one (1) registration, in each case whether
underwritten or otherwise, under the Securities Act of all or part 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. Each request for a
Long-Form Registration or Short-Form Registration shall specify the approximate
number of Registrable Securities requested to be registered, the anticipated per
share price range for such offering (if known) and the intended method of
distribution.
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(b) Long-Form Registrations. The holders of a majority of the
BRS Registrable Securities will be entitled to request up to three (3) Long-Form
Registrations in which the Company will pay all Registration Expenses. Until
such time as the Required Warrant Holders request a Short-Form Registration
under Section 2(c) below, such holders will be entitled to request one Long-Form
Registration in which the Company will pay all Registration Expenses. A
registration will not count as the permitted Long-Form Registration until it has
become effective and unless the holders of Registrable Securities are able to
register and sell 100% of the Registrable Securities requested to be included in
such registration, it being understood and agreed that the requisite holders of
Registrable Securities making a request for a Demand Registration hereunder may
withdraw from such registration at any time prior to the effective date of such
Demand Registration, in which case such request will not count as one of the
permitted Demand Registrations for such holders, irrespective of whether or not
such registration is effected.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 2(b), (i) the holders of the BRS
Registrable Securities will be entitled to request an unlimited number of
Short-Form Registrations, and (ii) until such time as the Required Warrant
Holders request a Long-Form Registration under Section 2(b) above, such holders
will be entitled to request one Short-Form Registration, in each case in which
the Company will pay all Registration Expenses. A registration will not count as
the permitted Short-Form Registration until it has become effective and unless
the holders of Registrable Securities are able to register and sell 100% of the
Registrable Securities requested to be included in such registration; it being
understood and agreed that the requisite holders of Registrable Securities
making a request for a Demand Registration hereunder may withdraw from such
registration at any time prior to the effective date of such Demand
Registration, in which case such request will not count as one of the permitted
Demand Registrations for such holders, irrespective of whether or not such
registration is effected. Demand Registrations will be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. After the
Company has become subject to the reporting requirements of the Exchange Act,
the Company will use its best efforts to make Short-Form Registrations available
for the sale of Registrable Securities. All registrations requested pursuant to
Sections 2(b) and 2(c) are referred to herein as "Demand Registrations."
(d) Priority on Demand Registrations. The Company will not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of at least a
majority of the Registrable Securities included in 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, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold therein without adversely affecting the
marketability of the offering, the Company will include in such registration for
any Demand Registration, (i) first, the Registrable Securities requested to be
included in such registration, pro rata among the holders thereof on the basis
of the number of shares of Registrable Securities requested to be included
therein by each such holder, and (ii) second, any other securities of the
Company requested to be included in such registration pro rata, if necessary, on
the basis of the number of shares of such other securities owned by each such
holder.
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(e) Restrictions on Demand Registrations. The Company will
not be obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration.
(f) Selection of Underwriters. In the case of a Demand
Registration, the holders of a majority of the Registrable Securities to be
included in such Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering, which investment
banker(s) and manager(s) will be nationally recognized, subject to the Company's
approval which will not be unreasonably withheld.
(g) Other Registration Rights. Except as provided in this
Agreement, the Company will not grant to any Persons the right to request the
Company to register any equity or similar securities of the Company, or any
securities convertible or exchangeable into or exercisable for such securities,
whether on a "demand" or "piggyback" basis, without the prior written consent of
the holders of a majority of the Registrable Securities.
3. Demand Registrations for Registrable Preferred Securities.
(a) Requests for Registration. Subject to the terms and
conditions of this Agreement (including, without limitation, Section 3(e)), at
any time after the occurrence of a Warrant Holder Demand Event, the Required
Warrant Holders may request one (1) registration, whether underwritten or
otherwise, under the Securities Act of all or part of their Registrable
Preferred Securities as either a Long-Form Registration or Short-Form
Registration. Each request for a Long-Form Registration or Short-Form
Registration shall specify the approximate number of Registrable Preferred
Securities requested to be registered, the anticipated per share price range for
such offering (if known) and the intended method of distribution.
(b) Long-Form Registrations. Until such time as the Required
Warrant Holders request a Short-Form Registration under Section 3(c) below, such
holders will be entitled to request one Long-Form Registration in which the
Company will pay all Registration Expenses. A registration will not count as the
permitted Long-Form Registration until it has become effective and unless the
holders of Registrable Preferred Securities are able to register and sell 100%
of the Registrable Securities requested to be included in such registration, it
being understood and agreed that the requisite holders of Registrable Preferred
Securities making a request for a Preferred Demand Registration hereunder may
withdraw from such registration at any time prior to the effective date of such
Preferred Demand Registration, in which case such request will not count as one
of the permitted Preferred Demand Registrations for such holders, irrespective
of whether or not such registration is effected.
(c) Short-Form Registrations. In addition to the Long-Form
Registration provided pursuant to Section 3(b), until such time as the Required
Warrant Holders request a Long- Form Registration under Section 3(b) above, such
holders will be entitled to request one Short-Form Registration, in each case in
which the Company will pay all Registration Expenses. A registration will not
count as the permitted Short-Form Registration until it has become effective and
unless the holders of Registrable Preferred Securities are able to register and
sell 100% of the Registrable Preferred Securities requested to be included in
such registration; it being understood and agreed that
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the requisite holders of Registrable Preferred Securities making a request for a
Preferred Demand Registration hereunder may withdraw from such registration at
any time prior to the effective date of such Preferred Demand Registration, in
which case such request will not count as one of the permitted Preferred Demand
Registrations for such holders, irrespective of whether or not such registration
is effected. Preferred Demand Registrations will be Short-Form Registrations
whenever the Company is permitted to use any applicable short form. After the
Company has become subject to the reporting requirements of the Exchange Act,
the Company will use its best efforts to make Short-Form Registrations available
for the sale of Registrable Preferred Securities. All registrations requested
pursuant to Sections 3(b) and Section 3(c) are referred to herein as "Preferred
Demand Registrations."
(d) Priority on Preferred Demand Registrations. The Company
will not include in any Preferred Demand Registration any securities which are
not Registrable Preferred Securities without the prior written consent of the
holders of at least a majority of the Registrable Preferred Securities included
in such registration. If a Preferred Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Preferred Securities and, if permitted
hereunder, other securities requested to be included in such offering exceeds
the number of Registrable Preferred Securities and other securities, if any,
which can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration for any Preferred Demand
Registration, (i) first, the Registrable Preferred Securities requested to be
included in such registration, pro rata among the holders thereof on the basis
of the number of shares of Registrable Preferred Securities requested to be
included therein by each such holder, and (ii) second, any other securities of
the Company requested to be included in such registration pro rata, if
necessary, on the basis of the number of shares of such other securities owned
by each such holder.
(e) Restrictions on Preferred Demand Registrations. The
Company will not be obligated to effect any Preferred Demand Registration within
six months after the effective date of a previous Demand Registration.
(f) Selection of Underwriters. In the case of a Preferred
Demand Registration, the holders of a majority of the Registrable Preferred
Securities to be included in such Preferred Demand Registration will have the
right to select the investment banker(s) and manager(s) to administer the
offering, which investment banker(s) and manager(s) will be nationally
recognized, subject to the Company's approval which will not be unreasonably
withheld.
4. Piggyback Registrations for Registrations of
Registrable Securities.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its Common Stock under the Securities Act (other than pursuant
to a Demand Registration or an IPO that is not a Qualified Public Offering, and
other than pursuant to a registration statement on Form S-8 or S-4 or any
similar form or in connection with a registration the primary purpose of which
is to register debt securities (i.e., in connection with a so-called "equity
kicker")) and a registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), the Company will give
prompt written notice to all holders of Registrable Securities of its intention
to effect such a registration and will include in such registration (subject to
the
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provisions of this Agreement) all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within 20
days after the receipt of the Company's notice.
(b) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
the Company will include in such registration all securities requested to be
included in such registration; provided, that if 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 without
adversely affecting the marketability of the offering, the Company will include
in such registration (A) first, the securities the Company proposes to sell, (B)
second, the other Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares of Registrable Securities requested to be included
therein by each such holder, and (C) third, other securities, if any, requested
to be included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities (which registration was consented to pursuant to
Section 2(g) above), 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 without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares of
Registrable Securities owned by each such holder, and (iii) third, other
securities requested to be included in such registration not covered by clause
(i) or clause (ii) above.
(d) Selection of Underwriters. If any Piggyback Registration
is an underwritten offering, the Company shall select the investment banker(s)
and manager(s) for the offering subject to the approval of the holders of a
majority of the BRS Registrable Securities, which approval will not be
unreasonably withheld.
(e) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to this
Section 4, 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 or similar securities or securities
convertible or exchangeable into or exercisable for its equity or similar
securities under the Securities Act (except on Forms S-4 or S-8 or any successor
forms), 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. In the event the Company proposes
to register any of the Preferred Stock under the Securities Act (other than
pursuant to a Demand Registration) and a registration form to be used may be
used for the registration of Preferred Registrable Securities, the provisions of
Sections 4(a)-(e) shall apply to such registration of Preferred Registrable
Securities.
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5. Holdback Agreements.
(a) Each holder of Registrable Securities (or Registrable
Preferred Securities, as applicable) hereby agrees not to effect any public sale
or distribution (including sales pursuant to Rule 144) of equity securities of
the Company, or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the 180-day period
beginning on the effective date of any Demand Registration or Piggyback
Registration (or any Preferred Demand Registration, as applicable) for a public
offering to be underwritten on a firm commitment basis in which Registrable
Securities (or Registrable Preferred Securities, as applicable) are included
(except as part of such underwritten registration), unless the underwriters
managing the registered public offering otherwise agree; provided, that with
respect to any Warrant Holder, the foregoing 187 day period shall be 180 days in
the case of an IPO and 90 days in the case of all other underwritten public
offerings.
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or Piggyback Registration (except as part of
such underwritten registration or pursuant to registrations on Forms S-4 or S-8
or any successor forms), or any Preferred Demand Registration, as applicable,
unless the underwriters managing the registered public offering otherwise agree,
and (ii) to cause each holder of Registrable Securities (or any Registrable
Preferred Securities, as applicable) and each other holder of at least 5% (on a
fully diluted basis) of Common Stock (or Preferred Stock, as applicable), or any
securities convertible into or exchangeable or exercisable for Common Stock (or
Preferred Stock, as applicable), purchased from the Company at any time after
the date of this Agreement (other than in a registered public offering) to agree
not to effect any public sale or distribution (including sales pursuant to Rule
144) 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.
6. Registration Procedures.
(a) Whenever the holders of Registrable Securities or
Registrable Preferred Securities have requested that any Registrable Securities
or Registrable Preferred 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 or Registrable Preferred Securities, as applicable,
in accordance with the intended method of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible (or within such specific
time period as may otherwise be specified):
(i) subject to Section 6(b) below, within ten (10) days after
receipt of any request for a Demand Registration or Preferred Demand
Registration, the Company will give written notice of such requested
registration to all other holders of Registrable Securities or Registrable
Preferred Securities, as applicable, and will include (subject to the provisions
of this Agreement) in such registration, all Registrable Securities or
Registrable Preferred Securities, as applicable, with respect to which the
Company has received written requests for inclusion therein within ten (10)
business days after the receipt of the Company's notice;
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(ii) subject to Section 6(b) below, prepare and file with the
SEC a registration statement with respect to such Registrable Securities or
Registrable Preferred Securities, as applicable, and cause such registration
statement to become effective within 120 days of the Company's receipt of a
request for a Demand Registration or Preferred Demand Registration, as
applicable (provided that before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company will furnish to the
counsel selected pursuant to Section 6(b) below copies of all such documents
proposed to be filed);
(iii) subject to Section 6(b) below, prepare and file with the
SEC such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary (i) to keep such
registration statement effective for a period (the "Effectiveness Period") equal
to the shorter of (x) 180 days or (y) the period of time as all of the
Registrable Securities or Registrable Preferred Securities, as
applicable, included in the registration statement shall have been sold
thereunder, and (ii) 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 or
Registrable Preferred Securities, as applicable, 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) if requested by the holders of a majority of the BRS
Registrable Securities in connection with any Demand Registration requested by
such holders, use its commercially reasonable efforts to cause to be included in
such registration Common Stock having an aggregate value (based on the midpoint
of the proposed offering price range specified in the registration statement
used to offer such securities) of up to $30.0 million, to be offered in a
primary offering of the Company's securities contemporaneously with such
offering of Registrable Securities;
(vi) register or qualify such Registrable Securities or
Registrable Preferred Securities, as applicable, 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 or Registrable Preferred Securities, as applicable, 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 (i.e.,
service of process which is not limited solely to securities law violations) in
any such jurisdiction);
(vii) notify each seller of such Registrable Securities or
Registrable Preferred Securities, as applicable, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or omits
any fact necessary to make the statements therein not misleading, and, at the
request of any such seller, the
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Company will promptly prepare a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such Registrable
Securities or Registrable Preferred Securities, as applicable, 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;
(viii) in the case of Registrable Securities only, cause all such
Registrable Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and, if not so listed, to be
listed on the Nasdaq National Market System ("Nasdaq Market") and, if listed on
the Nasdaq Market, secure designation of all such Registrable Securities covered
by such registration statement as a Nasdaq "National Market System security"
within the meaning of Rule 11Aa2-1 of the SEC or, failing that, to secure Nasdaq
Market authorization for such Registrable Securities and, without limiting the
generality of the foregoing, arrange for at least two market makers to register
as such with respect to such Registrable Securities with the National
Association of Securities Dealers;
(ix) provide a transfer agent and registrar for all such
Registrable Securities or Registrable Preferred Securities, as applicable, not
later than the effective date of such registration statement;
(x) 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 or Registrable Preferred Securities, as
applicable, being sold or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities or
Registrable Preferred Securities (including, without limitation, effecting a
stock split or a combination of shares);
(xi) make available for inspection by any seller of Registrable
Securities or Registrable Preferred Securities, as applicable, 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 any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(xii) comply with all applicable rules and regulations of the
SEC, and make available to its security holders, as soon as reasonably
practicable, an earning statement covering the period of at least twelve months
beginning with the first day of the Company's first full calendar quarter after
the effective date of the registration statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
(xiii) permit any holder of Registrable Securities or Registrable
Preferred Securities, as applicable, which holder, in its sole and exclusive
judgment, might be deemed to be an underwriter or a controlling person of the
Company, to participate in the preparation of such registration or comparable
statement and to require the insertion therein of material, furnished to the
Company in writing, which in the reasonable judgment of the Company and its
counsel should be included;
-11-
12
(xiv) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(xv) cause such Registrable Securities or Registrable Preferred
Securities, as applicable, covered by such registration statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the sellers thereof to consummate the disposition
of such Registrable Securities or Registrable Preferred Securities; and (xvi)
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 or Registrable Preferred Securities, as applicable, being sold
reasonably request.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if, in its sole and
exclusive judgment, such holder is or might be deemed to be a controlling person
of the Company, such holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such holder and
presented to the Company in writing, to the effect that the holding by such
holder of such securities is not to be construed as a recommendation by such
holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise, in the opinion of counsel to the
Company, is not required by the Securities Act or any similar Federal statute
then in force, the deletion of the reference to such holder.
(b) If a the Company receives a request for a Demand Registration
or Preferred Demand Registration during any "lock up" or "black out" period
imposed pursuant to Section 5(a) hereof or in connection with any underwriting
or purchase agreement relating to a Rule 144A offering or registered public
offering of Common Stock, X'Xxxxxxxx Holdings will not be required to notify the
holders of Registrable Securities (or Registrable Preferred Securities, as
applicable) or file a registration statement prior to the end of such "lock up"
or "black out" period; provided, that in such case the Company will use
commercially reasonable efforts to cause the registration statement to become
effective no later than 180 days after the Company's receipt of such request for
a Demand Registration or Preferred Demand Registration or, if applicable, 90
days after the end of such "lock up" or "black out" period. Notwithstanding the
foregoing to the contrary, the Company may postpone the filing of, or suspend
the effectiveness of, any registration statement or amendment thereto, suspend
the use of any prospectus and shall not be required to amend or supplement the
registration statement, any related prospectus or any document incorporated
therein by reference (other than an effective registration statement being used
for an underwritten offering) in the event that, and for a period (a "Suspension
Period") not to exceed an aggregate of 45 days if (i) an event or circumstance
occurs and is continuing as a result of which the registration statement, any
related prospectus or any document incorporated therein by reference as then
amended or supplemented or
-12-
13
proposed to be filed would, in the Company's good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii)(A) the
Company determines in its good faith judgment that the disclosure of the
event at that time would have a material adverse effect on its business,
operations, or prospects or (B) the disclosure otherwise relates to a
material business transaction or development that has not yet been publicly
disclosed; provided, that if a Suspension Period occurs during an
Effectiveness Period (as defined in Section 6(a)(iii) above), the
Effectiveness Period shall be extended by the number of days in the
Suspension Period. In the event of any "lock up" or "black out" period
which arises pursuant to any underwriting or purchase agreement between the
Company and an underwriter, the Company will promptly notify the holders of
Registrable Securities and Registrable Preferred Securities of the same.
7. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all Registration
Expenses, will be borne by the Company.
(b) In connection with each Registration effected under any of
Sections 2, 3, 4 or 5 hereof, the Company will reimburse the holders of
Registrable Securities and Registrable Preferred Securities, as applicable
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities (or
Registrable Preferred Securities) participating in such registration.
8. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities or Registrable Preferred Securities,
as applicable, its officers, directors and partners and each Person who controls
such holder (within the meaning of the Securities Act) against all losses,
claims, damages, liabilities and expenses arising out of or based upon any
untrue or 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, and shall reimburse such holder, director, officer, partner or
controlling Person for any legal or other expenses reasonably incurred by such
holder, director, officer, partner or controlling Person in connection with the
investigation or defense of such loss, claim, damage, liability or expense,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such holder expressly for use therein or
by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will indemnify such
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 or Registrable Preferred Securities.
-13-
14
(b) In connection with any registration statement in which a
holder of Registrable Securities or Registrable Preferred Securities is
participating, each such holder 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 a written
undertaking to indemnify the Company, its directors and officers and each Person
who controls the Company (within the meaning of the Securities Act) (i) against
any losses, claims, damages, liabilities and expenses resulting from any untrue
or 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
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, and (ii) with respect to compliance by such holder with applicable laws
in effecting the sale or other disposition of the Registrable Securities or
Registrable Preferred Securities in connection with such registration.
(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 (provided that such consent shall
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 any other of such indemnified parties with respect to such
claim.
(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 also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
9. 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 hereunder
to approve such arrangements and (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; provided, that no holder of Registrable Securities or Registrable
Preferred Securities included in any underwritten registration shall be required
to make any representations or warranties to the Company or the underwriters
other than representations and warranties regarding such holder and such
holder's intended method of distribution.
-14-
15
10. Rule 144 Reporting. With a view to making available to the
holders of Registrable Securities or Registrable Preferred Securities, as
applicable, the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities or Registrable Preferred
Securities, as applicable, to the public without registration, the Company
agrees to use its best efforts to:
(a) make and keep current public information available, within
the meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and
other documents required of the Company under the Securities Act and Exchange
Act (after it has become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable
Securities, furnish to such Person forthwith upon request, a written statement
by the Company as to its compliance with the reporting requirements of said Rule
144 (at any time commencing 90 days after the effective date of the first
registration filed by the Company for an offering of its securities to the
general public), the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements); a copy of the most recent
annual or quarterly report of the Company; and such other reports and documents
as such Person may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without
registration.
11. 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, mailed by certified or registered mail, return receipt requested and
postage prepaid, or sent via a nationally recognized overnight courier, or sent
via facsimile to the recipient accompanied by a certified or registered mailing.
Such notices, demands and other communications will be sent to the address
indicated below:
To the Company, to:
------------------
X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President, and
Secretary
Facsimile: (000) 000-0000 (President)
(000) 000-0000 (Secretary)
-15-
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With a copy, which shall not constitute notice to the
Company, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To BRS, to:
----------
Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx
With a copy, which shall not constitute notice to
BRS, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To any Executive, to:
--------------------
[Executive]
c/o X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: [Executive]
Facsimile: (000) 000-0000
To any Warrant Holder, to:
-------------------------
To the address for such Warrant Holder set forth in
the Company's records;
or, in the case of any party, to such other address or to the attention of such
other person as the recipient party shall have specified by prior written notice
to the sending party.
12. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not
enter into any agreement which is inconsistent with or violates the rights
granted to the holders of Registrable Securities or
Registrable Preferred Securities in this Agreement.
-16-
17
(b) 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. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. Except as otherwise provided
herein, (a) no modification, amendment or waiver of any provision of this
Agreement shall be effective against the Company or the holders of Registrable
Securities or Registrable Preferred Securities unless such modification,
amendment or waiver is approved in writing by, respectively, the Company or the
holders of a majority of the Registrable Securities or Registrable Preferred
Securities, as applicable, and (b) no modification, amendment or waiver which
materially adversely affects the rights of a class of holders of Registrable
Securities or Registrable Preferred Securities, as applicable, under this
Agreement vis-a-vis other classes of holders of Registrable Securities or
Registrable Preferred Securities shall be effective against such class unless
such modification, amendment or waiver is approved in writing by holders of a
majority of such class of Registrable Securities or Registrable Preferred
Securities, as applicable. For avoidance of doubt, an amendment to add another
party to this Agreement is not an action which, in and of itself, affects any
holder of Registrable Securities materially adversely. The failure of any party
to enforce any of the provisions of this Agreement shall in no way be construed
as a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
(d) 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 or Registrable Preferred
Securities, as applicable, are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities or Registrable Preferred Securities.
(e) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) 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 such counterparts taken together
will constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
-17-
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(H) GOVERNING LAW. THE CORPORATE LAWS OF THE STATE OF DELAWARE
WILL GOVERN ALL QUESTIONS CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
* * * * *
-18-
19
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: ---------------------------------------
Name:
Title:
BRUCKMANN, XXXXXX, XXXXXXXX & CO. II, L.P.
By: BRSE, L.L.C.,
Its: General Partner
By: ---------------------------------------
Name:
Title:
20
EXECUTIVE SIGNATURE PAGE (PAGE 1 OF 4)
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
XXXXXXX X. XXXXXXXX XXXXX X. XXXXXXX
/s/ Xxxxxxx X. X'Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
XXXXXXX X. X'XXXXXXXX XXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------- ----------------------------------
XXXXXXX X. XXXXX XXXX X. XXXXXXXXXXX
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxxxx
---------------------------------- ----------------------------------
XXXXXX X. XXXXXX XXXXX XXXXXXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx, Xx. /s/ Xxx X. Xxxxxx
---------------------------------- ----------------------------------
XXXXXX X. X'XXXXXXXX, XX. XXX X. XXXXXX
/s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Xxx
---------------------------------- ----------------------------------
XXXXX X. XXXXXXX XXXX X. XXX
/s/ Xxxxxxx X. Xxxxxx, III /s/ Xxxxx X. Edge
---------------------------------- ----------------------------------
XXXXXXX X. XXXXXX, III XXXXX X. EDGE
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
XXXXXX X. XXXXXXX XXXXXXX X. XXXXXXX
/s/ E. Xxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxx
---------------------------------- ----------------------------------
E. XXXXXX XXXXXX XXXXXXX X. XXXX
/s/ Xxxxx X. Xxxxxxx /s/ Xxx Xxxxxxx
---------------------------------- ----------------------------------
XXXXX X. XXXXXXX XXX XXXXXXX
/s/ Xxxxx Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ----------------------------------
XXXXX XXXXXX, XX. XXXXXXX X. XXXXXX
21
EXECUTIVE SIGNATURE PAGE (PAGE 2 OF 4)
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
XXXXX X. XXXXXX XXXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxx
---------------------------------- ----------------------------------
XXXX X. XXXXXXX XXXXXXX X. XXXX
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxx
---------------------------------- ----------------------------------
XXXX X. XXXXXXXXX XXXXX X. XXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx /s/ Xxxxxx X. X'Xxxxxxxx
---------------------------------- ----------------------------------
XXXXXX X. X'XXXXXXXX XXXXXX X. X'XXXXXXXX
X'XXXXXXXX PROPERTIES, INC.
/s/ Xxxxxxx Day By: /s/ Xxxxxx X. X'Xxxxxxxx, Xx.
---------------------------------- ----------------------------------
XXXXXXX DAY Name:
Title:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxxx
---------------------------------- ----------------------------------
XXXXXXX X. XXXXXX XXXX XXXXXXXX
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxxx X'Xxxxxxxx
---------------------------------- ----------------------------------
XXXXXX X. XXXXXX XXXXXXXX X'XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. X'Xxxxxxxx
---------------------------------- ----------------------------------
XXXXXX X. XXXXXXXXX XXXXXXX X. X'XXXXXXXX, as custodian
for Xxxx X'Xxxxxxxx
22
EXECUTIVE SIGNATURE PAGE (PAGE 3 OF 4)
/s/ Xxxxxxx X. X'Xxxxxxxx /s/ Xxx X'Xxxxxxxx
---------------------------------- ----------------------------------
XXXXXXX X. X'XXXXXXXX, as custodian XXX X'XXXXXXXX
for Xxxxxx X'Xxxxxxxx
/s/ Xxxxxxx X. X'Xxxxxxxx /s/ Xxxxxxxx X'Xxxxxxxx Day
---------------------------------- ----------------------------------
XXXXXXX X. X'XXXXXXXX, as custodian XXXXXXXX X'XXXXXXXX DAY
for Xxxxxx X'Xxxxxxxx
/s/ Xxxx Xxxxx /s/ Xxxxx Xxxxxx
---------------------------------- ----------------------------------
XXXX XXXXX XXXXX XXXXXX
/s/ Xxxxx X'Xxxxxxxx /s/ Xxxxxx X. Xxxx
---------------------------------- ----------------------------------
XXXXX X'XXXXXXXX XXXXXX X. XXXX
XXXXX X'XXXXXXXX XXXXXXX
REVOCABLE LIVING TRUST
/s/ Xxxxx X. X'Xxxxxxxx By: /s/ Xxxxx X'Xxxxxxxx Xxxxxxx
---------------------------------- ----------------------------------
XXXXX X. X'XXXXXXXX Xxxxx X'Xxxxxxxx Xxxxxxx, Trustee
/s/ Xxxxxx X. X'Xxxxxxxx, Xx. /s/ Xxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
XXXXXX X. X'XXXXXXXX, XX. as XXXXX X. XXXXXXX, custodian for
custodian for Xxxxx X'Xxxxxxxx Xxxxx X. Xxxxxxx
BATO, L.P.
By: /s/ Xxxxxx X. X'Xxxxxxxx, Xx. /s/ Xxxxx Xxxxxxx
---------------------------------- ----------------------------------
Xxxxxx X. X'Xxxxxxxx, Xx., General XXXXX XXXXXXX, custodian for Xxxxxxx
Partner Xxxxxxx
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxx
---------------------------------- ----------------------------------
XXXXX X. XXXXXXX XXXXX X. XXXXXX
23
EXECUTIVE SIGNATURE PAGE (PAGE 4 OF 4)
/s/ Xxxxx X'Xxxxxxxx Xxxxxxx /s/ Xxxxxx Xxxxx Xxxxxxx
---------------------------------- ----------------------------------
XXXXX X'XXXXXXXX XXXXXXX XXXXXX XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx Xxxx /s/ Xxxxx X'Xxxxxxxx
---------------------------------- ----------------------------------
XXXXX X'XXXXXXXX
XXXXX XXXXXXX XXXX
/s/ Xxxxxxx Xxxxxxx
----------------------------------
XXXXXXX XXXXXXX
24
BRS INVESTORS SIGNATURE PAGE
/s/ Xxxxxx Xxxxxxxx /s/ Rice Xxxxxxx
---------------------------------- ----------------------------------
XXXXXX XXXXXXXX RICE XXXXXXX
/s/ Xxxxxx Xxxxx /s/ Xxxxx Xxxxxx
---------------------------------- ----------------------------------
XXXXXX XXXXX XXXXX XXXXXX
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
---------------------------------- ----------------------------------
XXXXX XXXXXXXXX XXXXXX XXXXXXX
/s/ Xxxxxxxx Xxxxxx
----------------------------------
XXXXXXXX XXXXXX
25
WARRANT HOLDERS SIGNATURE PAGE
XXXXXX BROTHERS INC.
By: /s/
----------------------------------
Name:
Title:
