REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of April 27, 1995, by and among Golden State Acquisition Corp., a
Delaware corporation (the "Company"), FAC, Ltd., a Cayman Islands corporation
("FAC"), Xxxx Xxxxxxx Mutual Life Insurance Company ("Xxxxxxx"), SBIC Partners,
L.P. ("SBIC Partners"), Exeter Equity Partners, L.P. and Exeter Venture Lenders
(collectively, "Exeter") and each of CGW Associates Limited Partnership,
Mid-State Horticultural Company, Xxxxxxx X. X'Xxxxx, Massachusetts Mutual Life
Insurance Company, Massmutual Participation Investors, Massmutual Corporate
Investors, Ardshiel Inc. and Bank of America Illinois (collectively, the "Junior
Holders"). FAC, SBIC Partners, Exeter, Xxxxxxx and the Junior Holders are
collectively referred to in this Agreement as the "Stockholders" and
individually as a "Stockholder." Unless otherwise provided in this Agreement,
capitalized terms used herein shall have the meanings set forth in paragraph 8
hereof.
The Company and the Stockholders are parties to an Equity Purchase
Agreement, dated as of even date herewith (the "Purchase Agreement"). The
Company, Golden State Vintners, a California corporation, and Xxxxxxx are
parties to a Securities Purchase Agreement, dated the date hereof (the
"Securities Purchase Agreement"). The Company and the Stockholders are parties
to a Stockholder Agreement, dated as of even date herewith (the "Stockholder
Agreement"). In order to induce the Stockholders to enter into the Purchase
Agreement and the Stockholder Agreement and Xxxxxxx to enter into the Securities
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement.
The parties hereto agree as follows:
1. DEMAND REGISTRATION RIGHTS.
(a) REQUESTS FOR REGISTRATION. Subject to the limitation and
restrictions set forth below, on any six occasions after the fifth anniversary
of the Closing, the holders of at least fifteen (15%) percent of the Registrable
Securities (hereinafter, the "Demanding Holders") may make a written request of
the Company for registration with the Commission under the Securities Act of all
or any portion of their Registrable Securities (hereinafter, a "Demand
Registration"); PROVIDED, HOWEVER, that to the extent any Stockholder is a
Demanding Holder with respect to any of its Registrable Securities on any two of
the six occasions permitted hereunder, such Stockholder shall not be permitted
to request additional Demand Registrations (whether or not such Stockholder
holds at such time in excess of 15% of the Registrable Securities), and the
Registrable Securities of such Stockholder shall not be included for purposes of
determining the requisite 15% threshold set forth above only in connection with
any subsequent Demand Registration requested by the other Stockholders. 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 shall give written
notice of such requested registration to all other holders of Registrable
Securities and shall 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.
Unless a registration is withdrawn pursuant to the request of the
Demanding Holders for any reason other than a material adverse change in the
Company or unfavorable conditions in the capital markets, a registration shall
not be counted as one of the permitted Demand Registrations (i) until it has
become effective, and (ii) unless the requesting party or parties are able to
register and sell at least 75% of the Registrable Securities requested to be
included in such registration.
(b) PRIORITY ON DEMAND REGISTRATIONS. If in any Demand
Registration the managing underwriter or underwriters thereof (or, in the case
of a Demand Registration not being underwritten, in the opinion of a majority of
the holders of Registrable Securities) advise the Company that in its or 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 Company or the success of the offering, the
Company shall include in such registration the number of Registrable Securities
and other securities requested to be included in such registration, which in the
opinion of such underwriters can be sold without adversely affecting the Company
or the success of the offering as follows: (i) first, the Registrable Securities
requested to be included in such Demand Registration pro rata among the
Demanding Holders on the basis of the number of Registrable Securities requested
to be included, (ii) second, the Registrable Securities requested to be included
in such Demand Registration by other Stockholders pro rata among those
requesting inclusion in such Demand Registration on the basis of the number of
Registrable Securities requested to be included, and (iii) third, shares to be
issued and sold by the Company and requested to be included in such Demand
Registration.
(c) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall
not be obligated to effect any Demand Registration within 180 days after the
effective date of a previous Demand Registration or a previous registration in
which the holders of Registrable Securities were given piggyback rights pursuant
to paragraph 2 hereof.
(d) SELECTION OF UNDERWRITERS. The Company's board of
directors shall have the right to select the investment banker(s) and manager(s)
to administer the offering.
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2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to
register any of its securities with the Commission under the Securities Act
(other than pursuant to a Demand Registration) and the registration form to be
used may be used for the registration of Registrable Securities (a "Piggyback
Registration"), the Company shall give prompt written notice to all holders of
Registrable Securities, at least 60 days prior to the anticipated filing date,
of its intention to effect such a registration and shall include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 30 days after the receipt
of the Company's notice.
(b) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Stockholders as a part of the written notice given
pursuant to subsection 2(a). In such event, the right of any Stockholder to
registration pursuant to this Section 2 shall be conditioned upon such holder's
participation in such underwriting and the inclusion of Registrable Securities
in the underwriting to the extent provided herein. All Stockholders, if
proposing to distribute their securities through such underwriting, shall
(together with the Company and the other Stockholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting.
(c) PRIORITY ON PIGGYBACK REGISTRATIONS. If the Company (in
the case of an offering not involving an underwriting) or the managing
underwriter (in the case of an underwritten offering) shall reasonably determine
(and notify the holders of Registrable Securities of such determination) that
the number or kind of securities proposed to be sold in such registration
(including the Registrable Securities to be included pursuant to subsection 2(a)
above) exceeds the number which can be sold in such offering without adversely
affecting the Company or the success of the offering, the Company shall include
in such registration the number of securities, if any, which in the opinion of
such underwriter or the Company, as the case may be, can be sold. The Company
shall so advise all holders of the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be allocated (i)
first, to the Company, and (ii) second, pro rata among all holders of
Registrable Securities and other securities of the Company on the basis of the
number of shares requested to be included in such registration by each such
holder.
(d) 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, which approval
shall not be unreasonably withheld.
(e) 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
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Company shall not file or cause to be effective 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 180 days has
elapsed from the effective date of such previous registration.
3. HOLDBACK AGREEMENTS.
(a) Each holder of Registrable Securities shall not 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 underwritten Demand Registration
or any underwritten Piggyback Registration (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company shall not 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 270-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.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its commercially reasonable 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 shall as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its commercially
reasonable efforts to cause such registration statement to become effective;
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by 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
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documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(d) use its commercially reasonable efforts to register or
qualify such Registrable Securities under such other securities or blue sky laws
of such jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company shall 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 shall prepare
a supplement or amendment to such prospectus and/or registration statement so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall 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 National Association of
Securities Dealers automated quotation system ("NASDAQ");
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of the first
registration statement relating to Registrable Securities or securities of any
class of the Company;
(h) enter into such customary agreements (including, to the
extent applicable hereunder, underwriting agreements in customary form) and take
all such other actions as the holders of a majority of the Registrable
Securities being sold or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities
(including effecting a 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
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information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise comply with all applicable rules and regulations
of the Commission with which the Company is required to comply, 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
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(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 securities included in such registration statement for sale in any
jurisdiction, the Company shall use its commercially reasonable efforts promptly
to obtain the withdrawal of such order.
5. REGISTRATION EXPENSES.
(a) The Company shall pay all Registration Expenses (as defined
in subparagraph (b) below) in connection with any registration initiated as a
Demand Registration and all Piggyback Registrations whether or not such
registration has become effective and whether or not, in the case of a Demand
Registration, such registration is counted as one of the Demand Registrations.
(b) 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, fees and disbursements
of custodians, 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"), shall be borne by the Company, and the
Company shall 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 NASDAQ.
(c) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of Registrable
Securities included in such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration.
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6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
applicable law, each holder of Registrable Securities, its officers and
directors and each Person who controls such holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
(collectively "Losses") 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 Company of
applicable federal and state securities laws, in each case, except insofar as
the same are caused by, contained in or arise out of or result from 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 to the person
asserting the claims from which such Losses arise after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company shall 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 shall
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 applicable law, shall 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; provided that the obligation
to indemnify shall be individual, not joint and several, for each holder and
shall 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 shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
written notice shall not impair any Person's right to indemnification hereunder
to the extent such failure has not materially prejudiced the indemnifying party)
and (ii) unless such indemnified party receives a written opinion of counsel to
the effect that a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
7
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall not
be subject to any liability for any settlement made by the indemnified party
without its consent (but 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 shall 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 the indemnified party receives a written opinion of counsel
to the effect that 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 shall
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 shall 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.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATION. 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, (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements, and (iii) completes
and executes any other documents reasonably required in connection therewith.
8. DEFINITIONS.
"Business Day" means each day of the week from and including
Monday to and including Friday, except such day that is a legal holiday in New
York, New York or Boston, Massachusetts.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means any share of the Company's Class A Common
Stock, par value $.0l per share, Class B Common Stock, par value $.01 per share,
Class D Common Stock, par value $.0l per share or Class E Common Stock, par
value $.0l per share.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, a limited liability company, an unincorporated
organization or a government or any department or agency thereof.
"Registrable Securities" means, irrespective of which Person
actually holds such securities, (i) any shares of Common Stock acquired as of
the date hereof by any Stockholder
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pursuant to the Purchase Agreement, (ii) any shares of Common Stock acquired
hereafter by any Stockholder, and (iii) any capital stock of the Company issued
or issuable with respect to the securities referred to in clauses (i) or (ii)
above by way of a stock dividend, stock split, conversion or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Registrable Securities, such securities
will cease to be Registrable Securities when they have been 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
(or any similar rule then in force) under the Securities Act. 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 such 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.
"Securities Act" means the Securities Act of 1933, as amended.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall 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
shall not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) REMEDIES. Any Person having rights under any provision of
this Agreement shall 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 holders of a majority of the
Registrable Securities; provided, however,
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that no such amendment or waiver shall adversely affect the rights hereunder of
any of the parties hereto without the prior written approval of such party.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall 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 shall 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 shall 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
shall 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 ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (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.
(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 overnight
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 shall be sent to and to each of the Company,
SBIC Partners, Exeter, FAC and Xxxxxxx at the addresses indicated below:
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If to the Company, to:
Golden State Acquisition Corp.
Xxxxx XxXxxxxxx Xxxxx & Co. Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx X. XxXxxxxxx
with a copy, which will not constitute notice to the
Company, to:
Xxxxxxxx Kill Xxxxx & Xxxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to Mid-State Horticultural Company, to:
Mid-State Horticultural Company
0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
If to CGW Associates Limited Partnership, to:
CGW Associates Limited Partnership
c/o Ardshiel, Inc.
000 Xxxx Xxxxxx - Xxxxx 0000
Xxx Xxxx, XX 00000
with a copy, which will not constitute notice to CGW
Associates Limited Partnership, to:
Xxxxxxx Xxxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
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If to SBIC Partners, to:
SBIC Partners, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
with a copy, which will not constitute notice to SBIC
Partners, to:
Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
If to Exeter, to:
Exeter Venture Lenders, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy, which will not constitute notice to Exeter, to:
Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
If to FAC, to:
Xxxxx XxXxxxxxx Xxxxx & Co. Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx X. XxXxxxxxx
with a copy, which will not constitute notice to FAC, to:
Xxxxxxxx Kill Xxxxx & Xxxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
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If to Xxxxxxx, to:
Xxxx Xxxxxxx Mutual Life Insurance Company
000 Xxxxxxxxx Xxxxxx - 00xx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attention: Bond & Corporate Finance Dept.
and to:
Xxxx Xxxxxxx Mutual Life Insurance Company
0000 Xxxxx Xxxx Xxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Portfolio Management & Investment Services T-57
with a copy, which will not constitute notice to Xxxxxxx, to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
Old Federal Reserve Bank Building
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
If to Bank of America Illinois:
Bank of America Illinois
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
If to Massachusetts Mutual Life Insurance Company:
Massachusetts Mutual Life Insurance Company
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
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If to MassMutual Participation Investors:
MassMutual Participation Investors
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxx
If to MassMutual Corporate Investors:
MassMutual Participation Investors
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxx
If to Ardshiel, Inc., to:
Ardshiel, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X.X. Xxxxxx
If to Xxxxxxx X. X'Xxxxx, to:
Xxxxxxx X. X'Xxxxx
00 Xxxx Xxx Xxxxxxx Xxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000
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.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GOLDEN STATE ACQUISITION CORP.
By:
---------------------------------
Its:
---------------------------------
FAC, LTD.
By:
---------------------------------
Its:
---------------------------------
EXECUTIVE
-------------------------------------
Xxxxxxx X. O'Xxxxx
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By:
---------------------------------
Its:
---------------------------------
EXETER EQUITY PARTNERS, L.P.
By: Exeter Equity Advisors, L.P.,
General Partner
By: Exeter Equity Advisors,
Inc., General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Vice President
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GOLDEN STATE ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxx
---------------------------------
Its: Secretary
---------------------------------
FAC,LTD.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Its:
---------------------------------
EXETER EQUITY PARTNERS, L.P.
By: Exeter Equity Advisors, L.P.,
General Partner
By: Exeter Equity Advisors,
Inc., General Partner
By:
---------------------
Xxxxxxx X. Xxxxxxx
Vice President
EXETER VENTURE LENDERS, L.P.
By: Exeter Venture Advisors, Inc.,
General Partner
By:
------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
16
EXETER VENTURE LENDERS, L.P.
By: Exeter Venture Advisors, Inc.,
General Partner
By:
------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
SBIC PARTNERS, L.P.
By: Xxxxxxx Xxxxxxx & Xxxxx, X.X.,
General Partner
By: Xxxxxxx Xxxxxxx & Xxxxx
Venture Co., General
Partner
By:
------------------------------
Xxxxxxx X. Xxxxx
Office of the
President
By: SL-SBIC PARTNERS, L.P.
General Partner
By: FW-SBIC, Inc.,
General Partner
By:
------------------------------
Name:
----------------------
Title:
----------------------
MID-STATE HORTICULTURAL COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Its: President
-----------------------------------
CGW ASSOCIATES LIMITED PARTNERSHIP
By:
-----------------------------------
Its:
-----------------------------------
17
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
MASSMUTUAL CORPORATE INVESTORS
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
ARDSHIEL INC.
By:
-----------------------------------
Name:
Title:
18
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
MASSMUTUAL PARTICIPATION INVESTORS
By:
-----------------------------------
Name:
Title:
MASSMUTUAL CORPORATE INVESTORS
By: -----------------------------------
Name:
Title:
ARDSHIEL INC.
By: /s/
-----------------------------------
Name:
Title: Attorney-in-Fact
BANK OF AMERICA ILLINOIS
By:
-----------------------------------
Name:
Title:
00
XXXX XX XXXXXXX XXXXXXXX
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
------------------------------------------
Xxxxxxx X. O'Xxxxx
XXXX XXXXXXX MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Agribusiness
Investment Officer
20
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
MASSMUTUAL PARTICIPATION INVESTORS
By:
-----------------------------------
Name:
Title:
MASSMUTUAL CORPORATE INVESTORS
By:
-----------------------------------
Name:
Title:
ARDSHIEL INC.
By: /S/
-----------------------------------
Name:
Title: Attorney-in-Fact
BANK OF AMERICA ILLINOIS
By:
-----------------------------------
Name:
Title:
------------------------------------------
Xxxxxxx X. X'Xxxxx
21
