EXHIBIT 4.1
EXECUTION
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of October 5, 2000, between Xxxxxxx Holdings
Inc., a Delaware corporation (the "Company"), and the Persons listed on Schedule
A attached hereto (the "Investors").
Certain of the parties to this Agreement are parties to a Stock Purchase
Agreement, dated as of the date hereof (the "Stock Purchase Agreement"). In
order to induce those Investors which are parties to the Stock Purchase
Agreement to enter into the Stock Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. Unless otherwise
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in paragraph 9 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. Subject to Sections 1(b) and 1(c) below,
(i) at any time, the holders of at least a majority of the Class B Registrable
Securities, or if no Class B Registrable Securities are then outstanding, the
holders of a majority of the Registrable Securities and (ii) after the sixth
anniversary of the date hereof and until the ninth anniversary of the date
hereof, if the Company has not consummated a Public Offering, the holders of at
least a majority of the Class D Registrable Securities (in each case, the
"Demand Registrable Securities"), may request registration 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, if available, on Form S-2
or S-3 or any similar short-form registration ("Short-Form Registrations").
Notwithstanding the foregoing, if in connection with a registration pursuant to
clause (ii) above, an investment banking firm of national reputation mutually
agreeable to the Company and the holders of a majority of the Class D
Registrable Securities advises the Company that in their opinion the sale of
Registrable Securities at such time is not in the best interest of the Company,
then such registration shall be delayed until such investment banking firm
(which shall review such opinion on a quarterly basis) no longer advises the
Company that such offering is not in the best interest of the Company. In
addition to the demand registration right under clause (ii) above, at any time
after the consummation of a Public Offering, the holders of a majority of the
Class D Registrable Securities may request an unlimited number of Long-Form
Registrations or, if available, Short-Form Registrations of all or part of their
Registrable Securities until such holders cease to hold at least 10% of the
number of Class D Registrable Securities held by such holders as of the date
hereof ("Class D Demand Registrations"). Each request for a Demand Registration
shall specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. 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, subject to Section 1(d) below, will include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 15 days after the receipt of the Company's
notice. All registrations requested pursuant to this Section 1(a) are referred
to herein as "Demand Registrations."
(b) Long-Form Registrations. The holders of Demand Registrable
Securities will be entitled to request five Long-Form Registrations in which the
Company will pay all Registration Expenses and, at any time after the
consummation of a Public Offering, the holders of a majority of the Class D
Registrable Securities will be entitled to request an unlimited number of Class
D Demand Registrations until such holders cease to hold at least 10% of the
number of Class D Registrable Securities held by such holders as of the date
hereof in which the Company will pay all Registration Expenses("Company-Paid
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 such holders do not agree to bear all
Registration Expenses in connection therewith); provided that in any event the
Company will pay all Registration Expenses in connection with any registration
initiated as a Company-Paid Long-Form Registration whether or not it has become
effective. All Long-Form Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Company-Paid Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of at least a
majority of the Class B Registrable Securities, or if no Class B Registrable
Securities are then outstanding, the holders of at least a majority of the
Registrable Securities, and the holders of at least a majority of the Class D
Registrable Securities until such holders cease to hold at least 10% of the
number of Class D Registrable Securities held by such holders as of the date
hereof will be entitled to request an unlimited number of Short-Form
Registrations in which the Company will pay all Registration Expenses. 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 Securities Exchange Act, the Company will use its
best efforts to make Short-Form Registrations available for the sale of
Registrable Securities.
(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 prior to the inclusion
of any securities which are not Registrable Securities the number of Registrable
Securities requested to be included (whether upon exercise of a demand
registration right or upon exercise of the right to participate in such a demand
registration) which in the opinion of such underwriters can be sold without
adversely affecting the marketability of the offering, pro rata among the
respective holders thereof on the basis of the number of Registrable Securities
requested to be included 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 Demand Registration or a registration in which the holders
of Registrable Securities were given piggyback rights pursuant to Section 2 and
in which there was no reduction in the number of Registrable Securities
requested to be included. The Company may postpone for up to six months the
filing or the effectiveness of a registration statement for a Demand
Registration if the Company determines that such Demand Registration would
reasonably be expected to have an adverse effect (i) on any proposal or plan by
the Company or any of its Subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer or similar transaction, or (ii) any material corporate development;
provided that in such event, the holders of Registrable Securities initially
requesting such Demand Registration will be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration will not count as
one of the permitted Demand Registrations hereunder and the Company will pay all
Registration Expenses in connection with such registration.
(f) Selection of Underwriters. The holders of a majority of the
Registrable Securities included in any Demand Registration will have the right
to select the investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval which will not be unreasonably withheld.
(g) Other Registration Rights. Except as provided in this Agreement and
that certain Management Stockholders Agreement to be entered into among the
Company, ONEX American Holdings LLC or its affiliates and certain of the
Company's executive officers, the Company will not grant to any Persons the
right to request the Company to register any equity securities of the Company,
or any securities convertible or exchangeable into or exercisable for such
securities, without the prior written consent of the holders of at least a
majority of the Registrable Securities; provided that the Company may grant
rights to other Persons to participate in Piggyback Registrations or Demand
Registrations so long as such rights are subordinate to the rights of the
holders of Registrable Securities with respect to such Piggyback Registrations
or Demand Registrations.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (including secondary registrations on
behalf of the holders of its securities 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 to all holders of Registrable Securities of its
intention to effect such a registration and will include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 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.
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(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 without adversely affecting the marketability
of the 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 rata among the holders of
such Registrable Securities on the basis of the number of shares requested to be
included by each such holder, and (iii) third, other securities requested to be
included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
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 without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, pro rata among the securities requested to be
included therein by the holders requesting such registration and the other
Registrable Securities requested to be included in such registration, on the
basis of the number of shares requested to be included by each such holder, 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 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 Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 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 securities
convertible or exchangeable into or exercisable 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 (including sales pursuant to Rule 144 under the
Securities Act) of Registrable Securities of the Company, or any securities
convertible into or exchangeable or exercisable 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 exchangeable or
exercisable 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 (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (ii) to cause each holder of its common stock, or any
securities convertible into or exchangeable or exercisable for common stock,
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 under the Securities Act) of
any Registrable 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. 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, and pursuant thereto the Company will as
expeditiously as possible:
(a) 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 furnish to each seller of Registrable
Securities, each underwriter participating in any disposition pursuant to such
registration and to the counsel selected by the holders of a majority of the
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject to the review of
such counsel);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of not less than six months 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;
(c) 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;
(d) 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
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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 subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction);
(e) 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, the Company will promptly 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;
(f) 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 NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to 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 Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
underwriters reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(i) 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 any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings 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
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date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) 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;
(l) obtain cold comfort letters, dated (i) the effective date of such
registration statement, (ii) the date the Registrable Securities being sold are
delivered to the underwriters, if any, for sale pursuant thereto and (iii) if
required by the underwriters, if any, on or prior to the date of any preliminary
prospectuses, from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by cold comfort
letters and if the Registrable Securities included in such registration
statement constitute at least 10% of the securities covered by such registration
statement, also covering such matters as the holders of a majority of the
Registrable Securities being sold reasonably request;
(m) provide a legal opinion of the Company's outside counsel with
respect to the registration statement, each amendment and supplement thereto,
the prospectus included therein (including the preliminary prospectus) and such
other documents relating thereto in customary form and covering such matters of
the type customarily covered by legal opinions of such nature;
(n) if requested by the managing underwriter or underwriters or a holder
of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid thereof by such underwriters and with respect to any other
terms of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment;
(o) cooperate with the selling holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not bearing
any restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters; and
(p) use its best efforts to cause the Registrable Securities covered by
the applicable registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if
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any, to consummate the disposition of such Registrable Securities.
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 associated with filings required to be made with the
NASD (including, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel as may be required by the rules and
regulations of the NASD), 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 (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 or on the NASD
automated quotation system (on the National Market System if the Company so
qualifies).
(b) In connection with each Demand 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 the Registrable Securities
initially requesting such registration (in the case of a Demand Registration)
and the holders of a majority of the Registrable Securities included in such
registration (in the case of a Piggyback Registration).
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls, is controlled by or is under common control with such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities and expenses (including any amounts paid in any settlement
effected with the Company's consent, which consent shall not be unreasonably
withheld) caused by 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 or any violation by the
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Company of any federal, state or common law risk applicable to the Company and
relating to action required of or inaction by the Company in connection with
such registration, 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.
(b) In connection with any registration statement in which a holder of
Registrable 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, 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 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 which specifically states that it is for use
in the preparation of such registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto; provided that the
obligation to indemnify will be individual to each holder and will be limited to
the net amount of proceeds received by such holder from the sale of Registrable
Securities 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 (but any failure to so notify the indemnifying
party shall not relieve it of any liability which it may otherwise have to any
indemnified party unless such failure shall materially adversely affect the
defense of such claim) 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 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
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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 such proportion as is appropriate to reflect the
relative benefits received by, and the relative fault of, the Company and such
indemnified party in the event the Company's indemnification is unavailable for
any reason.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) 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 (including, without
limitation, pursuant to the terms of any overallotment or "green shoe" option
requested by the managing underwriter(s)) and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in paragraph 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such paragraph 4(e).
(c) In the event any registration hereunder is underwritten and the
managing underwriters advise the Company in writing that in their opinion the
Company's capital stock structure would adversely affect the marketability of
the offering, each holder of Registrable Securities shall consent to and vote
for a recapitalization, reorganization and/or exchange of the Company's capital
stock into securities that the managing underwriters and the Company's Board of
Directors find acceptable and shall take all necessary or desirable actions in
connection with the consummation of the recapitalization, reorganization and/or
exchange; provided that the resulting securities reflect and are consistent with
the rights and preferences set forth in the Company's Certificate of
Incorporation as in effect immediately prior to such underwritten offering.
8. Current Public Information. At all times after the Company has filed
a registration statement with the Securities and Exchange Commission pursuant to
the requirements of either the Securities Act or the Securities Exchange Act,
the Company will use reasonable best efforts to file all reports required to be
filed by it under the Securities Act and the Securities Exchange Act and the
rules and regulations adopted by the Securities and Exchange Commission
thereunder, and will take such further action as any holder or holders of
Registrable Securities may reasonably request, all to the extent required to
enable such holders to sell Registrable Securities pursuant to Rule 144 adopted
by the Securities and Exchange commission under the Securities Act (as such rule
may be amended from time to time) or any similar rule or regulation hereafter
adopted by the Securities and Exchange Commission.
9. Definitions.
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(a) "Class A Common" means the Company's Class A Common Stock, par value
$.01 per share.
(b) "Class B Common" means the Company's Class B Common Stock, par value
$.01 per share.
(c) "Class B Registrable Securities" means (i) any Class B Common issued
pursuant to the Stock Purchase Agreement, (ii) any of the Company's common stock
issued or issuable with respect to the securities referred to in clause (i)
above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, and (iii) any other shares of the Company's Class B Common held
by Persons holding securities described in clauses (i) or (ii) above. As to any
particular Class B Registrable Securities, such securities will cease to be
Class B Registrable Securities when they have been distributed to the public
pursuant to a Public Sale. For purposes of this Agreement, a Person will be
deemed to be a holder of Class B Registrable Securities whenever such Person has
the right to acquire directly or indirectly such Class B Registrable Securities
(upon conversion, exchange 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.
(d) "Class C Common" means the Company's Class C Common Stock, par value
$.01 per share.
(e) "Class D Common" means any Class D-1 Common and Class D-2 Common.
(f) "Class D-1 Common" means the Company's Class D-1 Common Stock, par
value $.01 per share.
(g) "Class D-2 Common" means the Company's Class D-2 Common Stock, par
value $.01 per share.
(h) "Class D Registrable Securities" means (i) any Class D Common issued
pursuant to the Stock Purchase Agreement, (ii) any of the Company's common stock
issued or issuable with respect to the securities referred to in clause (i)
above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, and (iii) any other shares of the Company's Class D Common held
by Persons holding securities described in clauses (i) or (ii) above. As to any
particular Class D Registrable Securities, such securities will cease to be
Class D Registrable Securities when they have been distributed to the public
pursuant to a Public Sale. For purposes of this Agreement, a Person will be
deemed to be a holder of Class D Registrable Securities whenever such Person has
the right to acquire directly or indirectly such Class D Registrable Securities
(upon conversion, exchange 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.
11
(i) "Class E Common" means the Company's Class E Common Stock, par value
$.01 per share.
(j) "Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization or a government or any department or agency thereof.
(k) "Public Offering" means the sale in an underwritten public offering
under the Securities Act of equity securities of the Company.
(l) "Public Sale" means any sale of the Company's common stock to the
public pursuant to an offering registered under the Securities Act or to the
public through a broker, dealer or market maker pursuant to the provisions of
Rule 144 adopted under the Securities Act.
(m) "Registrable Securities" means (i) any Class A Common, Class B
Common, Class C Common, Class D-1 Common, Class D-2 Common and Class E Common
issued pursuant to the Stock Purchase Agreement, (ii) any of the Company's
common stock issued or issuable with respect to the securities referred to in
clause (i) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization, and (iii) any other shares of the Company's common stock held by
Persons holding securities described in clauses (i) or (ii) above (other than
any such shares which have been previously distributed pursuant to a Public
Sale). As to any particular Registrable Securities, such securities will cease
to be Registrable Securities when they have been distributed to the public
pursuant to a Public Sale. For purposes of this Agreement, a Person will be
deemed to be a holder of Registrable Securities whenever such Person has the
right to acquire directly or indirectly such Registrable Securities (upon
conversion, exchange 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.
(n) "Securities Act" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
(o) "Securities and Exchange Commission" includes any governmental body
or agency succeeding to the functions thereof.
(p) "Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
(q) "Stockholders Agreement" means the Investor Stockholder Agreement,
of even date herewith, entered into by and among the Company and the Investors.
(r) "Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to
12
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a limited liability company,
partnership, association or other business entity, a majority of the partnership
or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that
Person or a combination thereof. For purposes hereof, a Person or Persons shall
be deemed to have a majority ownership interest in a limited liability company,
partnership, association or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control a
majority of the managers or general partners of such limited liability company,
partnership, association or other business entity.
Unless otherwise stated, other capitalized terms contained herein have the
meanings set forth in the Stock Purchase Agreement.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders 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 adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, 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. 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.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of at least a majority of the
Registrable Securities. To the extent that any amendment or waiver of this
Agreement disproportionately and adversely affects the rights of the holders of
any class of Registrable Securities relative to rights of the holders of any
other class of Registrable Securities, the prior written consent of the holders
of at least a majority of the disproportionately and adversely affected class of
Registrable Securities shall be required to effect such amendment or waiver. To
the extent that any amendment or waiver
13
adversely affects the rights of the holders of Class B Registrable Securities or
Class D Registrable Securities, the prior written consent of the holders of at
least a majority of the Class B Registrable Securities or Class D Registrable
Securities, respectively, will be required.
(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.
(f) 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.
(g) 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.
(h) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(i) 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.
(j) Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable express courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to the Investors and to the Company at the addresses
specified for notices in the Stock Purchase Agreement 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.
* * * * *
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
XXXXXXX HOLDINGS INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Its:
---------------------------------------
ONEX AMERICAN HOLDINGS LLC
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Its:
---------------------------------------
J2R PARTNERS VII
By: /s/ [ILLEGIBLE]
---------------------------------------
Its:
---------------------------------------
NORWEST EQUITY PARTNERS VII, LP
By: Itasca LBO Partners VII, LLP
Its: General Partner
By: /s/ [ILLEGIBLE]
---------------------------------------
Its: Partner
---------------------------------------
XXXXXXXX STREET PARTNERS II
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------------
Its:
---------------------------------------
[Signature Page to Registration Agreement]
BCP II AFFILIATES FUND LIMITED PARTNERSHIP
By: Xxxxxx X. Xxxxx & Co. Incorporated
Its: General Partner
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: Managing Director
----------------------------------------
XXXXX CAPITAL PARTNERS II LIMITED
PARTNERSHIP
By: Xxxxx Capital Partners Management
Company, L.L.C.
Its: General Partner
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: Managing Director
----------------------------------------
XXXXX CAPITAL PARTNERS III LIMITED
PARTNERSHIP
By: Xxxxx Capital Partners Management
Company III, L.L.C.
Its: General Partner
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: Director
----------------------------------------
BCP III SPECIAL AFFILIATES LIMITED
PARTNERSHIP
By: Xxxxx Capital Partners Management
Company III, L.L.C.
Its: General Partner
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: Director
----------------------------------------
BCP III AFFILIATES FUND LIMITED PARTNERSHIP
By: Xxxxx Capital Partners Management
Company III, L.L.C.
Its: General Partner
By: /s/ [ILLEGIBLE]
-----------------------------------------
Its: Director
----------------------------------------
[Continuation of Signature Page to Registration Agreement]
/s/ X.X. XXXXXXX
--------------------------------------------
X.X. XXXXXXX
/s/ XXXXX X. XXXX
--------------------------------------------
XXXXX X. XXXX
/s/ XXXX X. READ
--------------------------------------------
XXXX X. READ
/s/ J. XXXX XXXXXX
--------------------------------------------
J. XXXX XXXXXX
/s/ XXXX X. XXXXXXX
--------------------------------------------
XXXX X. XXXXXXX
/s/ XXXX X. XXXXXX
--------------------------------------------
XXXX X. XXXXXX
/s/ XXXXX X. XXXX
--------------------------------------------
XXXXX X. XXXX
/s/ XXXXXX X. XXXXXX
--------------------------------------------
XXXXXX X. XXXXXX
/s/ XXXXXX X. XXXXXX
--------------------------------------------
XXXXXX X. XXXXXX
/s/ XXXXXXX X. XXXXX
--------------------------------------------
XXXXXXX X. XXXXX
[Continuation of Signature Page to Registration Agreement]
[Continuation of Signature Page to Registration Agreement]
Schedule A
Investors
ONEX American Holdings LLC, a Delaware limited liability company
J2R Partners VII, a Minnesota general partnership
Norwest Equity Partners VII, LP, a Minnesota limited partnership
BCP II Affiliates Fund Limited Partnership
Xxxxx Capital Partners II Limited Partnership
Xxxxx Capital Partners III Limited Partnership
BCP III Special Affiliates Limited Partnership
BCP III Affiliates Fund Limited Partnership
X. X. Xxxxxxx
Xxxxx X. Xxxx
Xxxx X. Read
X. Xxxx Xxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
