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EXHIBIT 10.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 7, 2001
By and Among
GLOBAL POWER EQUIPMENT GROUP INC.
and
THE OTHER PERSONS SIGNATORY HERETO
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TABLE OF CONTENTS
ARTICLE I CERTAIN DEFINITIONS.....................................2
Section 1.1 Certain Definitions...................................2
ARTICLE II REGISTRATION RIGHTS........................................6
Section 2.1 Required Registration.................................6
Section 2.2 Incidental Registration...............................8
Section 2.3 Registration Procedures...............................9
Section 2.4 Preparation; Reasonable Investigation................12
Section 2.5 Rights of Requesting Holders.........................13
Section 2.6 Registration Expenses................................13
Section 2.7 Indemnification; Contribution........................13
Section 2.8 Holdback Agreements..................................15
Section 2.9 Availability of Information..........................15
Section 2.10 Additional Registration Rights......................15
ARTICLE III COVENANTS.................................................16
Section 3.1 Transactions with Affiliates.........................16
ARTICLE IV MISCELLANEOUS.............................................16
Section 4.1 Binding Effect; Specific Performance.................16
Section 4.2 Notices..............................................17
Section 4.3 Entire Agreement; Amendment and Waivers..............17
Section 4.4 Section Headings.....................................18
Section 4.5 Counterparts.........................................18
Section 4.6. Severability........................................18
Section 4.7. Governing Law.......................................18
Section 4.8. Incorporation by Reference..........................18
Section 4.9. Limitation on Liability.............................18
Section 4.10. Variation of Pronouns..............................18
Section 4.11. Further Action.....................................18
Section 4.12. Termination........................................18
Section 4.13. Benefits Only to Parties...........................19
Section 4.14. Saw Mill Ownership.................................19
Section 4.15. Termination of the Equityholders Agreement.........19
(i)
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Exhibits
Exhibit A Original Financial Stockholders
Exhibit B Management Stockholders
Exhibit C Former Holdings I Stockholders
Exhibit D Former Holdings II Members
(ii)
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REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is
dated as of May 7, 2001, by and among Global Power Equipment Group Inc., a
Delaware corporation (the "Company"), Harvest Partners III, L.P., a
Delaware
limited partnership ("Harvest"), SMC Power Holdings LLC, a
Delaware limited
liability company ("Saw Mill"), each of the other stockholders of the Company
listed on Exhibit A hereto (collectively with Saw Mill, the "Original Financial
Stockholders"), Cascade Investment Partners, L.L.C., a
Delaware limited
liability company ("Cascade"), each of the management stockholders identified as
such on Exhibit B hereto (the "Management Stockholders"), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ") and each of the other stockholders of
GEEG Acquisition Holdings Corp., a
Delaware corporation ("Holdings I"),
identified as such on Exhibit C hereto, and each of the former members of GEEG
Acquisition Holdings L.L.C., a
Delaware limited liability company ("Holdings
II"), identified as such on Exhibit D hereto.
WITNESSETH:
WHEREAS, each party to this Agreement, other than the Company,
is a party to an equityholders agreement (the "Equityholders Agreement"), dated
as of August 1, 2000, which regulated certain of their rights relating to their
respective direct or indirect equity investment in GEEG Holdings, L.L.C., a
Delaware limited liability company (the "Original Company");
WHEREAS, it is anticipated that the Original Company will be
converted, pursuant to a reorganization, into the Company on the Effective Date
(the "Conversion");
WHEREAS, as part of the Conversion, Holdings I will (i)
exchange all of its membership interests in the Original Company, which
represented substantially all of the assets of Holdings I, for shares of common
stock of the Company and (ii) immediately after such exchange distribute to its
stockholders all of the common stock of the Company received by it in the
conversion pursuant to a plan of dissolution, with each stockholder receiving
its pro rata share of such common stock;
WHEREAS, as part of the Conversion, Holdings II will (i)
exchange all of its membership interests in the Original Company for shares of
common stock of the Company and (ii) immediately after such exchange distribute
to its members all of the common stock of the Company received by it in the
Conversion, in complete liquidation, with each member receiving its pro rata
share of such common stock;
WHEREAS, as part of the Conversion, each of the Original
Financial Stockholders, Cascade, and the Management Stockholders (collectively,
the "Rollover Investors") will exchange all of their respective membership
interests in the Original Company for shares of common stock of the Company;
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WHEREAS, upon the consummation of the transactions described
in the foregoing recitals, each former member of the Original Company (other
than Holdings I and Holdings II), each former stockholder of Holdings I and each
former member of Holdings II will become a stockholder of the Company
(collectively, the "Stockholders"); and
WHEREAS, the parties hereto desire to enter into this
Agreement to, inter alia, regulate certain rights relating to their respective
equity investments in the Company.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. For purposes of this
Agreement, the following terms shall have the following meanings:
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Applicable Law" shall mean, with respect to any Person, all
provisions of laws, statutes, ordinances, rules, regulations, permits or
certificates of any Governmental Authority applicable to such Person or any of
its assets or property, and all judgments, injunctions, orders and decrees of
all courts, arbitrators or Governmental Authorities in proceedings or actions in
which such Person is a party or by which any of its assets or properties are
bound.
"Affiliate Restriction Termination Date" shall mean the later
of (i) the date on which no employee, director or officer of any Harvest Entity
is a member of the Board of Directors and (ii) the date on which the Harvest
Entities collectively hold less than 10% of the outstanding Common Stock.
"Board of Directors" shall mean the board of directors of the
Company.
"Business Day" shall mean any day except a Saturday, a Sunday
or any other day on which commercial banks are required or authorized to close
in New York, New York.
"Common Stock" shall mean all of the issued and outstanding
common stock of the Company, $0.01 par value per share.
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"Company" shall have the meaning set forth in the preamble to
this Agreement.
"Company Equity Securities" shall mean all Common Stock, all
securities convertible into or exchangeable for Common Stock, and all vested
Options, warrants, and other rights to purchase or otherwise acquire Common
Stock from the Company.
"Conversion" shall have the meaning set forth in the second
recital of this Agreement.
"Common Stock Equivalents" shall mean, at any time (i) with
respect to each outstanding share of Common Stock, one (1) and (ii) with respect
to any other outstanding Company Equity Securities, an amount equal to the
result obtained when the number of shares of Common Stock into or for which such
Company Equity Securities may be converted or exercised at such time, multiplied
by one (1).
"Demand Notice" shall have the meaning set forth in Section
2.1(b) of this Agreement.
"Demand Request" shall have the meaning set forth in Section
2.1(a) of this Agreement.
"DLJ" shall have the meaning set forth in the preamble to this
Agreement.
"Exchange" shall mean, collectively, the transactions
described in the third, fourth and fifth recitals hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC promulgated thereunder.
"Governmental Authority" shall mean any federal, state,
municipal or other governmental department, board, bureau, agency or
instrumentality, or any court, in each case whether of the United States of
America or foreign.
"Harvest" shall have the meaning set forth in the preamble to
this Agreement and shall include, for purposes of Article II hereof, a Qualified
Harvest Transferee.
"Harvest Entity" shall mean any of HPI, Harvest, any other
fund controlled by HPI, Holdings I, and any of their respective Affiliates
(other than the Company or any of its Subsidiaries).
"Harvest Letter" shall mean that certain letter agreement,
dated as of August 1, 2000, between the Company (as successor in interest to the
Global Energy Equipment Group LLC) and HPI, as amended through the date hereof.
"Holders' Counsel" shall have the meaning set forth in the
definition of "Registration Expenses".
"Holdings I" shall have the meaning set forth in the preamble
to this Agreement.
"HPI" shall mean Harvest Partners, Inc., a New York
corporation.
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"Incentive Securities" shall mean (i) any Options granted to
directors, officers or employees of the Company or any of its Subsidiaries so
long as such persons are not employed by, or are a consultant to, any Harvest
Entity and (ii) all Common Stock issued upon the exercise of any such Options.
"Incidental Registration" shall have the meaning set forth in
Section 2.2(a) of this Agreement.
"Management Stockholder" shall have the meaning set forth in
the preamble to this Agreement.
"NASDAQ" shall mean The Nasdaq Stock Market, Inc.
"Notices" shall have the meaning set forth in Section 4.2 of
this Agreement.
"Options" shall mean any rights, options or warrants to
purchase any Common Stock from the Company.
"Original Financial Stockholders" shall have the meaning set
forth in the preamble to this Agreement.
"Person" shall mean and include an individual, a partnership,
a joint venture, a corporation, a trust, a limited liability company, a limited
liability partnership, any unincorporated organization and a government or other
department or agency thereof.
"Public Offering" shall mean a sale of Common Stock pursuant
to an underwritten public offering pursuant to an effective registration
statement filed with the SEC.
"Qualified Harvest Transferee" shall mean, at any time, any
Person to whom Harvest or any other Qualified Harvest Transferee Transfers at
least ten percent (10%) of the Common Stock held by Harvest on the date hereof
and, at such time, such Person holds at least ten percent (10%) of the Common
Stock held by Harvest on the date hereof, provided that such Person agrees in
writing to become a party to this Agreement and be bound by its provisions.
"Registrable Securities" shall mean, at any time, any
outstanding Common Stock or Common Stock issued or issuable upon exercise or
conversion of any Incentive Securities. As to any particular Registrable
Securities once issued, such Registrable Securities shall cease to be
Registrable Securities:
(i) when a registration statement with respect to the sale of
such securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement;
(ii) when such securities have been distributed by the holder
thereof to the public pursuant to Rule 144 under the Securities Act (or any
successor provision); or
(iii) when such securities shall have ceased to be outstanding
or held by a Stockholder.
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"Registration" shall mean each Required Registration and each
Incidental Registration.
"Registration Expenses" shall mean, with respect to the
Company, all expenses incident to the Company's performance of or compliance
with Article II including, without limitation, all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), expenses of printing certificates
for the Registrable Securities in a form eligible for deposit with the
Depository Trust Company, messenger and delivery expenses, internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), and fees and disbursements of
counsel for the Company and its independent certified public accountants
(including the expenses of any management review, cold comfort letters or any
special audits required by or incident to such performance and compliance),
securities acts liability insurance (if the Company elects to obtain such
insurance), the reasonable fees and expenses of any special experts retained by
the Company in connection with such registration, fees and expenses of other
Persons retained by the Company, the reasonable fees and expenses of one (1)
counsel (the "Holders' Counsel") for the holders of Registrable Securities to be
included in the relevant Registration, selected by the holders of a majority of
the Registrable Securities to be included in such Registration (except that,
where a Registration is a Required Registration, such selection may only be made
by Members holding a majority of the Registrable Securities set forth in the
relevant Demand Request); but not including any underwriting fees, discounts or
commissions attributable to the sale of securities or fees and expenses of
counsel representing the holders of Registrable Securities included in such
Registration (other than the Holders' Counsel) incurred in connection with the
sale of Registrable Securities.
"Required Registration" shall have the meaning set forth in
Section 2.1(a) of this Agreement.
"Saw Mill" shall have the meaning set forth in the preamble to
this Agreement.
"SEC" shall mean, at any time, the U.S. Securities and
Exchange Commission or any other federal agency at such time administrating the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Senior Subordinated Loans" shall mean the loans incurred
under the Senior Subordinated Loan Agreement dated as of August 1, 2000 among
Global Energy Equipment Group LLC and the other parties thereto.
"Stockholders" shall mean each party to this Agreement from
time to time other than the Company.
"Subordinated Loan Holders" shall mean, from time to time,
holders of Company Equity Securities initially issued in connection with the
Subordinated Loan Agreement, solely in their capacity as such.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership, business trust, joint stock company, association,
limited liability company or other business entity of
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which (i) if a corporation, a majority of the total voting power of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors 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 partnership, limited
liability company, business trust, joint stock company, association or other
business entity other than a corporation, a majority of the partnership,
membership or other similar ownership interests 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 partnership,
limited liability company, business trust, joint stock company, association or
other business entity other than a corporation if such Person or Persons shall
be allocated a majority of the partnership, association or other business entity
gains or losses or shall be or control the managing director, manager, a general
partner or the trustee of such partnership, limited liability company, business
trust, joint stock company, association or other business entity.
"Transfer" means any transfer, sale, assignment, exchange,
charge, pledge, gift, hypothecation, conveyance, encumbrance, security interest
or other disposition (including any contract therefore), whether direct or
indirect, voluntary or involuntary, by operation of law or otherwise, and, with
respect to Common Stock, the entering into any voting trust or other arrangement
with respect to voting rights of such Common Stock or the transfer of any other
beneficial interest in such Common Stock.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Required Registration. (a) If the Company shall be
requested in writing, which writing shall specify the Registrable Securities to
be sold and the intended method of disposition thereof (a "Demand Request"), (x)
at any time by Harvest, (y) at any one time after the date which is 18 months
after the date of the Company's initial Public Offering and provided that, at
such time, the Company is eligible to file a registration statement on Form S-3,
by holders of 25% of the Common Stock Equivalents represented by the Company
Equity Securities which were distributed on the Effective Date by Holdings I to
its shareholders who are a party to the Senior Subordinated Loans, or (z) at any
one time after the date which is 18 months after the date hereof and provided
that, at such time, the Company is eligible to file a registration statement on
Form S-3, by Saw Mill, to effect a registration (which, in the case of a Demand
Request pursuant to clause (y) or (z) shall be a registration statement on Form
S-3) under the Securities Act of Registrable Securities held by such
Stockholders (each, a "Required Registration"), then the Company shall promptly
use its reasonable efforts to effect such Required Registration.
(b) Piggyback Rights. At any time upon receipt by the Company
of a Demand Request, the Company shall deliver a written notice to each other
Stockholder (a "Demand Notice") stating that the Company intends to comply with
a Demand Request and informing each such Stockholder of its right to include
Registrable Securities in such Required Registration. Within ten (10) Business
Days after receipt of a Demand Notice, each Stockholder entitled to a Demand
Notice shall have the right to request in writing that the Company include all
or a specific portion of the Registrable Securities held by such Stockholder in
such Required Registration.
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(c) Postponement. The Company may postpone any Required
Registration for a reasonable period of time, not to exceed one hundred eighty
(180) days, if the Board of Directors determines in good faith that such
Required Registration would (A) require the disclosure of a material transaction
or other comparable matter and such disclosure would be disadvantageous to the
Company, (B) adversely affect a material financing, acquisition, disposition of
assets or stock, merger or other comparable transaction or (C) otherwise be
materially detrimental to the Company.
(d) Time for Filing and Effectiveness. As promptly as
practicable after a Demand Request but in no event later than the day which is
sixty (60) days after such Demand Request the Company shall file with the SEC
the Required Registration with respect to all Registrable Securities to be so
registered, and shall use its reasonable efforts to cause such Required
Registration to become effective as promptly as practicable after the filing
thereof. The Company will use its reasonable efforts to keep any Required
Registration filed pursuant to this Section 2.1 effective for the period
beginning on the date on which the Required Registration is declared effective
and ending on the earlier of (i) the date of full distribution of the
Registrable Securities included in such Required Registration and (ii) the date
that is one hundred eighty (180) days from the date of first effectiveness.
(e) Selection of Underwriters. In the event that the
Registrable Securities to be registered pursuant to a Required Registration are
to be disposed of in an underwritten Public Offering, the underwriters of such
Public Offering shall be one or more underwriting firms of nationally recognized
standing selected by the Board of Directors and reasonably acceptable to holders
making the Demand Request who hold a majority of the Registrable Securities to
be included in such Required Registration by all holders making the Demand
Request.
(f) Priority on Required Registrations. In the event that, in
the case of any Required Registration, the managing underwriter for the Public
Offering contemplated by Section 2.1(a) shall advise the Company (with a copy to
each holder of Registrable Securities requesting sale) that, in such
underwriter's opinion, the amount of securities requested to be included in such
Required Registration would adversely affect the Public Offering and sale
(including pricing) of such Registrable Securities, the Company will include in
such Required Registration the number of Registrable Securities that the Company
is so advised can be sold in such Public Offering in the following amounts:
(i) first, all Registrable Securities requested to be
sold by holders of Registrable Securities pro rata among such
Stockholders on the basis of the number of Registrable
Securities requested to be registered by such holders;
provided, however, that if such managing underwriter shall
advise the Company that, in such underwriter's opinion, the
inclusion of Registrable Securities held by Management
Stockholders would adversely affect the offering and sale
(including pricing) of such securities, then the number of
Registrable Securities held by such Management Stockholders to
be included in such Public Offering may be disproportionately
reduced to avoid such adverse result; provided, further,
however, that with respect to Registrable Securities held by
Management Stockholders on the date hereof, such Registrable
Securities shall only be disproportionately reduced up to 50%
of such Registrable Securities; and
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(ii) second, securities proposed to be sold by the
Company for its own account.
(g) Additional Demand Requests. In the event that (i) the
Company postpones any Required Registration to be made in accordance with a
Demand Request pursuant to Section 2.1(a) by more than one hundred twenty (120)
days, (ii) the Required Registration does not become effective, or (iii) less
than a majority of the Registrable Securities requested by the Stockholders
making such Demand Request is included in such Required Registration, then the
Demand Request pursuant to which such Required Registration was to have been
made shall be deemed not to have been a Demand Request.
Section 2.2 Incidental Registration.
(a) Filing of Registration Statement. If the Company at any
time proposes to register, for its own account or the account of another Person,
any of its Common Stock (an "Incidental Registration") under the Securities Act
(other than pursuant to a registration statement on Form S-4 or Form S-8 or any
successor forms thereto or Section 2.1 hereof and other than pursuant to a
Demand Request), for sale to the public in a Public Offering, it will at each
such time give prompt written notice to all Stockholders of its intention to do
so, which notice shall be given at least thirty (30) days prior to the date that
a registration statement relating to such registration is proposed to be filed
with the SEC. Upon the written request of any Stockholder entitled to receive
such notice to include Registrable Securities held by it under such registration
statement (which request shall (i) be made within fifteen (15) days after the
receipt of any such notice, and (ii) specify the Registrable Securities intended
to be included by such holder), the Company will use its reasonable efforts to
effect the registration of all Registrable Securities that the Company has been
so requested to register by such Stockholder; provided, however, that if, at any
time after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason to terminate
such registration statement and not to register such securities, the Company
may, at its election, give written notice of such determination to each such
holder and, thereupon, shall be relieved of its obligation to register any
Registrable Securities of such Persons in connection with such registration.
(b) Selection of Underwriters. Notice of the Company's
intention to register such securities shall designate the proposed underwriters
of such Public Offering (which shall be one or more underwriting firms of
nationally recognized standing) and shall contain the Company's agreement to use
its reasonable efforts, if requested to do so, to arrange for such underwriters
to include in such underwriting the Registrable Securities that the Company has
been so requested to sell pursuant to this Section 2.2, it being understood that
the holders of Registrable Securities shall have no right to select different
underwriters for the disposition of their Registrable Securities.
(c) Priority on Incidental Registrations. If the managing
underwriter for the Public Offering contemplated by this Section 2.2 shall
advise the Company that, in such underwriter's opinion, the number of securities
requested to be included in such Incidental Registration would adversely affect
the Public Offering and sale (including pricing) of such securities, the Company
shall include in such Incidental Registration the number of securities that the
Company is so advised can be sold in such Public Offering, in the following
amounts and order of priority:
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(i) first, Registrable Securities proposed to be sold
by the Company for its own account or, if the other Person is
neither a Stockholder nor an Affiliate of such Stockholder,
the account of any other Person referred to in Section 2.2(a);
(ii) second, the Registrable Securities requested to
be registered by Stockholders and, if the other Person is a
Stockholder, the Registrable Securities proposed to be sold by
the Company for the account of such Person pro rata among such
Stockholders and such Person on the basis of the number of
Registrable Securities requested to be sold by such
Stockholders pursuant to this Section 2.2; provided, however,
that if such managing underwriter shall advise the Company
that, in such underwriter's opinion, the inclusion of
Registrable Securities held by the Management Stockholders
would adversely affect the Public Offering and sale (including
pricing) of such securities, then the number of Registrable
Securities held by the Management Stockholders to be included
in such Public Offering may be disproportionately reduced to
avoid such adverse result; provided, further, however, that
with respect to Registrable Securities held by Management
Stockholders on the date hereof, such Registrable Securities
shall only be disproportionately reduced up to 50% of such
Registrable Securities; and
(iii) third, all other Registrable Securities
requested to be included in such Registration.
Section 2.3 Registration Procedures. The Company will use its
reasonable efforts to effect each Required Registration pursuant to Section 2.1
and each Incidental Registration pursuant to Section 2.2, and to cooperate with
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof as quickly as possible, and the Company will as
expeditiously as possible:
(a) subject, in the case of an Incidental Registration, to the
proviso to Section 2.2(a), prepare and file with the SEC the
registration statement and use its reasonable efforts to cause the
Registration to become effective; provided, however, that, to the
extent practicable, the Company will furnish to the holders of the
Registrable Securities covered by such registration statement and their
counsel, copies of all such documents proposed to be filed and any such
holder shall have the opportunity to comment on (i) any information
pertaining solely to such holder and its plan of distribution that is
contained therein and the Company shall make the corrections reasonably
requested by such holder with respect to such information prior to
filing any such registration statement or amendment or (ii) any other
part of such registration statement to the extent consistent with any
investigation described in Section 2.4 and the Company shall consider
such comments in good faith prior to any such filing;
(b) subject, in the case of an Incidental Registration, to the
proviso to Section 2.2(a), prepare and file with the SEC such
amendments and post-effective amendments to any registration statement
and any prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement until
such time as all of such Registrable Securities have been disposed of
in accordance with the intended methods of disposition by the seller or
sellers thereof set
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forth in such registration statement and cause the prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act;
(c) furnish, upon request, to each holder of Registrable
Securities to be included in such Registration and the underwriter or
underwriters, if any, without charge, at least one signed copy of the
registration statement and any post-effective amendment thereto, and
such number of conformed copies thereof and such number of copies of
the prospectus (including each preliminary prospectus and each
prospectus filed under Rule 424 under the Securities Act), any
amendments or supplements thereto and any documents incorporated by
reference therein, as such holder or underwriter may reasonably request
in order to facilitate the disposition of the Registrable Securities
being sold by such holder (it being understood that the Company
consents to the use of the prospectus and any amendment or supplement
thereto by each holder of Registrable Securities covered by such
registration statement and the underwriter or underwriters, if any, in
connection with the Public Offering and sale of the Registrable
Securities covered by the prospectus or any amendment or supplement
thereto);
(d) notify each holder of the Registrable Securities to be
included in such Registration and the underwriter or underwriters, if
any:
(i) of any stop order or other order suspending the
effectiveness of any registration statement, issued or
threatened by the SEC in connection therewith, and take all
reasonable actions required to prevent the entry of such stop
order or to remove it or obtain withdrawal of it at the
earliest possible moment if entered;
(ii) when such registration statement or any
prospectus used in connection therewith, or any amendment or
supplement thereto, has been filed and, with respect to such
registration statement or any post-effective amendment
thereto, when the same has become effective;
(iii) of any written request by the SEC for
amendments or supplements to such registration statement or
prospectus; and
(iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the
applicable securities or blue sky laws of any jurisdiction;
(e) if requested by the managing underwriter or underwriters
or any holder of Registrable Securities to be included in such
Registration in connection with any sale pursuant to a registration
statement, promptly incorporate in a prospectus supplement or
post-effective amendment such information relating to such underwriting
as the managing underwriter or underwriters or such holder reasonably
requests to be included therein; and make all required filings of such
prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters incorporated in such
prospectus supplement or post-effective amendment;
(f) on or prior to the date on which a Registration is
declared effective, use its reasonable efforts to register or qualify,
and cooperate with the holders of Registrable
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Securities to be included in such Registration, the underwriter or
underwriters, if any, and their counsel, in connection with the
registration or qualification of the Registrable Securities covered by
such Registration for offer and sale under the securities or "blue sky"
laws of each state and other jurisdiction of the United States as any
such holder or underwriter reasonably requests in writing; use its
reasonable efforts to keep each such registration or qualification
effective, including through new filings, or amendments or renewals,
during the period such registration statement is required to be kept
effective; and do any and all other acts or things necessary or
advisable to enable the disposition of the Registrable Securities in
all such jurisdictions reasonably requested covered by such
Registration; provided, however, that the Company shall not be required
to qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action which would subject it to
general service of process in any such jurisdiction where it is not
then so subject;
(g) in connection with any sale pursuant to a Registration,
cooperate with the holders of Registrable Securities to be included in
such Registration and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold
under such Registration, and enable such securities to be in such
denominations and registered in such names as the managing underwriter
or underwriters, if any, or such holders may request;
(h) use its reasonable efforts to cause the Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities within the United States and having
jurisdiction over the Company or any Subsidiary as may be necessary to
enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such securities;
(i) use its reasonable efforts to obtain:
(A) at the time of effectiveness of each
Registration, a "comfort letter" from the Company's
independent certified public accountants covering such matters
of the type customarily covered by "cold comfort letters" as
the holders of a majority of the Registrable Securities to be
included in such Registration and the underwriters reasonably
request; and
(B) at the time of any underwritten sale pursuant to
the registration statement, a "bring-down comfort letter,"
dated as of the date of such sale, from the Company's
independent certified public accountants covering such matters
of the type customarily covered by comfort letters as the
Requisite Holders and the underwriters reasonably request;
(j) use its reasonable efforts to obtain, at the time of
effectiveness of each Registration and at the time of any sale pursuant
to each Registration, an opinion or opinions addressed to the
underwriter or underwriters, if any, in customary form and scope from
counsel for the Company (including a 10b-5 statement);
(k) notify each seller of Registrable Securities covered by
such Registration, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such
Registration, as then in effect, includes an untrue statement of a
material
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15
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and
promptly prepare and file with the SEC and furnish to such seller or
holder a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered
to the purchasers or prospective purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they are made;
(l) otherwise comply with all applicable rules and regulations
of the SEC, and make generally available to its security holders (as
contemplated by Section 11(a) under the Securities Act) an earnings
statement satisfying the provisions of Rule 158 under the Securities
Act no later than ninety (90) days after the end of the twelve (12)
month period beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the registration
statement, which statement shall cover said twelve (12) month period;
(m) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by each Registration
from and after a date not later than the effective date of such
Registration;
(n) use its reasonable efforts to cause all Registrable
Securities covered by each Registration to be listed subject to notice
of issuance, prior to the date of first sale of such Registrable
Securities pursuant to such Registration, on each securities exchange
on which the Common Stock is then listed, and admitted to trading on
NASDAQ, if the Common Stock or any such other securities of the Company
are then admitted to trading on NASDAQ; and
(o) enter into such agreements (including underwriting
agreements in customary form) and take such other actions as the
holders of a majority of Registrable Securities included in such
Registration shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
The Company may require each holder of Registrable Securities that will be
included in such Registration to furnish the Company with such information in
respect of such holder of its Registrable Securities that will be included in
such Registration as the Company may reasonably request in writing and as is
required by Applicable Law.
Section 2.4 Preparation; Reasonable Investigation. In
connection with the preparation and filing of each registration statement
registering Registrable Securities under the Securities Act, the Company shall
give the holders of such Registrable Securities so registered, their
underwriters, if any, and their respective counsel and accountants access to its
books and records and an opportunity to discuss the business of the Company with
its officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of such holders' or
such underwriters' to conduct a reasonable investigation within the meaning of
Section 11(b)(3) of the Securities Act.
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Section 2.5 Rights of Requesting Holders. Each holder of
Registrable Securities to be included in a Registration which makes a written
request therefor in Section 2.1 or 2.2, as the case may be, shall have the right
to receive within thirty (30) days of receipt by the Company of such request
copies of the information, notices and other documents described in Section
2.3(l) and Section 2.3(o).
Section 2.6 Registration Expenses. The Company will pay all
Registration Expenses in connection with each registration of Registrable
Securities, including, without limitation, any such registration not effected by
the Company.
Section 2.7 Indemnification; Contribution. (a) The Company
shall indemnify, to the fullest extent permitted by law, each holder of
Registrable Securities, its officers, directors, partners, employees and agents,
if any, and each Person, if any, who controls such holder within the meaning of
Section 15 of the Securities Act, against all losses, claims, damages,
liabilities (or proceedings in respect thereof) and expenses (under the
Securities Act or common law or otherwise), joint or several, resulting from any
violation by the Company of the provisions of the Securities Act or any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented if amended
or supplemented) or any preliminary prospectus or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of any prospectus, in
light of the circumstances under which they were made) not misleading, except to
the extent that such losses, claims, damages, liabilities (or proceedings in
respect thereof) or expenses are caused by any untrue statement or alleged
untrue statement contained in or by any omission or alleged omission from
information concerning any holder furnished in writing to the Company by such
holder expressly for use therein. If the Public Offering pursuant to any
registration statement provided for under this Article II is made through
underwriters, no action or failure to act on the part of such underwriters
(whether or not such underwriter is an Affiliate of any holder of Registrable
Securities) shall affect the obligations of the Company to indemnify any holder
of Registrable Securities or any other Person pursuant to the preceding
sentence. If the Public Offering pursuant to any registration statement provided
for under this Article II is made through underwriters, the Company agrees to
enter into an underwriting agreement in customary form with such underwriters
and the Company agrees to indemnify such underwriters, their officers,
directors, employees and agents, if any, and each Person, if any, who controls
such underwriters within the meaning of Section 15 of the Securities Act to the
same extent as herein before provided with respect to the indemnification of the
holders of Registrable Securities; provided that the Company shall not be
required to indemnify any such underwriter, or any officer, director or employee
of such underwriter or any Person who controls such underwriter within the
meaning of Section 15 of the Securities Act, to the extent that the loss, claim,
damage, liability (or proceedings in respect thereof) or expense for which
indemnification is claimed results from such underwriter's failure to send or
give a copy of an amended or supplemented final prospectus to the Person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such
amended or supplemented final prospectus prior to such written confirmation and
the underwriter was provided with such amended or supplemented final prospectus
a reasonable time prior to such written confirmation.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder, severally
and not jointly, shall indemnify, to the fullest
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extent permitted by law, the Company, each underwriter and their respective
officers, directors, employees and agents, if any, and each Person, if any, who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages, liabilities (or proceedings
in respect thereof) and expenses resulting from any untrue statement or alleged
untrue statement of a material fact, or any omission or alleged omission of a
material fact required to be stated in the registration statement or prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or
necessary to make the statements therein (in the case of any prospectus, in
light of the circumstances under which they were made) not misleading, but only
to the extent that such untrue statement is contained in or such omission is
from information so concerning a holder furnished in writing by such holder
expressly for use therein; provided that such holder's obligations hereunder
shall be limited to an amount equal to the net proceeds to such holder of the
Registrable Securities sold pursuant to such registration statement.
(c) Any Person entitled to indemnification under the
provisions of this Section 2.7 shall (i) give prompt 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 in respect of such
claim, permit such indemnifying party to assume the defense of such claim, with
counsel reasonably satisfactory to the indemnified party; and if such defense is
so assumed, such indemnifying party shall not enter into any settlement without
the consent of the indemnified party if such settlement attributes liability to
the indemnified party and such indemnifying party shall not be subject to any
liability for any settlement made without its consent (which shall not be
unreasonably withheld); and any underwriting agreement entered into with respect
to any registration statement provided for under this Article II shall so
provide. In the event an indemnifying party shall not be entitled, or elects
not, to assume the defense of a claim, such indemnifying party shall not be
obligated to pay the fees and expenses of more than one counsel or firm of
counsel for all parties indemnified by such indemnifying party in respect of
such claim, unless in the reasonable judgment of any such indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties in respect to such claim.
(d) If for any reason the foregoing indemnity is unavailable,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative fault
of such indemnifying party on the one hand and the indemnified party on the
other. Notwithstanding the foregoing, no holder of Registrable Securities shall
be required to contribute any amount in excess of the amount such holder would
have been required to pay to an indemnified party if the indemnity under Section
2.7(b) was available. No Person guilty of fraudulent misrepresentation (within
the meaning of section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The obligation of any Person to contribute pursuant to this
Section 2.7 shall be several and not joint.
(e) An indemnifying party shall make payments of all amounts
required to be made pursuant to the foregoing provisions of this Section 2.7 to
or for the account of the indemnified party from time to time promptly upon
receipt of bills or invoices relating thereto or when otherwise due or payable.
(f) The indemnity and contribution agreements contained in
this Section 2.7 shall remain in full force and effect regardless of any
investigation made by or on behalf of a
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participating holder of Registrable Securities, its officers, directors, agents
or any Person, if any, who controls such holder as aforesaid, and shall survive
the Transfer of Registrable Securities by such holder and the termination of
this Agreement for any reason.
Section 2.8 Holdback Agreements. (a) In the event and to the
extent requested by the managing underwriter or, if the Registrable Securities
are not being disposed of in an underwritten Public Offering, if requested by
the Company, each Stockholder agrees not to sell, make any short sale of, grant
any option for the purchase of, or otherwise dispose of any securities, other
than those Registrable Securities included in such Registration pursuant to
Section 2.1(a), 2.1(b) or 2.2(a), for the thirty (30) days prior to and the
ninety (90) days (one hundred eighty (180) days in the case of the initial
Public Offering of the Company) after the effectiveness of the registration
statement pursuant to which such Public Offering shall be made (or such shorter
period of time as is sufficient and appropriate, in the opinion of the managing
underwriter or, as the case may be, the Company in order to complete the sale
and distribution of the securities included in such Public Offering; provided
that, in no event shall any Stockholder be subject to a longer period of time
than Harvest); provided further, that the limitations contained in this Section
2.8(a) shall not apply to the extent a Stockholder is prohibited by Applicable
Law from so withholding such Registrable Securities from sale during such
period.
(b) During the period beginning thirty (30) days prior to the
effective date of any registration statement filed with respect to Registrable
Securities pursuant to an underwritten Public Offering and ending no later than
(i) one hundred eighty (180) days after the effective date of any such
registration statement and (ii) the expiration of any lock-up period required by
the underwriters, if any, of such Public Offering, the Company shall not (except
as part of such registration) effect any public sale or distribution of any of
its equity securities or of any security convertible into or exchangeable or
exercisable for any equity security of the Company.
Section 2.9 Availability of Information. Following the
Company's initial Public Offering, the Company shall comply with the reporting
requirements of Sections 13 and 15(d) of the Exchange Act and will comply with
all other public information reporting requirements of the SEC as from time to
time in effect, and cooperate with holders of Registrable Securities, so as to
permit disposition of the Registrable Securities pursuant to an exemption from
the Securities Act for the sale of any Registrable Securities (including,
without limitation, the current public information requirements of Rule 144(c)
and Rule 144A under the Securities Act). The Company shall also cooperate with
each Stockholder who is a holder of any Registrable Securities in supplying such
information as may be necessary for such holder to complete and file any
information reporting forms presently or hereafter required by the SEC as a
condition to the availability of an exemption from the Securities Act for the
sale of any Registrable Securities.
Section 2.10 Additional Registration Rights. Nothing contained
in this Agreement shall prevent the Company from granting additional
registration rights to any person or entity; provided, that, with respect to any
cutbacks hereunder, all cutbacks will continue to be on a pro rata basis, except
as otherwise specified herein.
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ARTICLE III
COVENANTS
Section 3.1 Transactions with Affiliates. (a) Until the
Affiliate Restriction Termination Date, Harvest, and any of its Affiliates may
engage in or possess an interest in any other business venture of any kind,
nature or description, independently or with others, whether or not such
ventures are competitive with the Company, notwithstanding that representatives
of Harvest or any of its Affiliates are serving as a Director of the Company.
Nothing in this Agreement shall be deemed to prohibit Harvest or any of its
Affiliates from dealing, or otherwise engaging in business, with Persons
transacting business with the Company. Neither the Company nor any Stockholder
shall have any rights or obligations by virtue of this Agreement, in or to any
independent venture of Harvest or any of its Affiliates, or the income or
profits or losses or distributions derived therefrom, and such ventures shall
not be deemed wrongful or improper even if competitive with the business of the
Company.
(b) Until the Affiliate Restriction Termination Date, the
Company will not, and will not permit any of its Subsidiaries to, enter into any
transaction (other than for legal services) with any Harvest Entity or any
employee, officer, director or Affiliate of any Harvest Entity other than
transactions which are on terms not substantially less favorable to the Company
or its Subsidiaries, as the case may be, as it could obtain in a transaction
with a party without a conflict of interest, it being understood that a
transaction approved by a majority of the votes of the Board of Directors
without a conflict of interest in such transaction shall be deemed to be on
terms not substantially less favorable; provided, however, that this Section
3.1(b) shall not prohibit transactions specifically permitted under the Harvest
Letter.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Effectiveness, Binding Effect; Specific
Performance. (a) This Agreement shall be effective upon consummation of the
Exchange.
(b) Except as otherwise provided in this Agreement, every
covenant, term and provision of this Agreement shall be binding upon and inure
to the benefit of the Stockholders and their respective heirs, legatees, legal
representatives and successors. The rights of any Stockholder under this
Agreement may not be assigned or otherwise conveyed by such Stockholder except
(i) in connection with a transfer of Company Equity Securities (x) held by a
Management Stockholder as a gift or gifts during such Management Stockholder's
lifetime to such Management Stockholder's spouse, children, grandchildren or a
trust or other legal entity for the benefit of such Management Stockholder or
any of the foregoing or (y) held by a Stockholder to any Affiliate of such
Stockholder or any employee of such Stockholder or any of its Affiliates and
(ii) as otherwise specifically provided for in this Agreement; provided, that
any Affiliate transferee pursuant to clause (i)(y) shall forfeit such rights
after ceasing to be an Affiliate of a transferor Stockholder and provided
further that as a condition to any Person acquiring the rights of a Stockholder
pursuant to this Section 4.1(b), such Person shall agree in writing to be bound
by all the provisions of this Agreement and shall execute and deliver to the
Company a counterpart to this Agreement. In the event any Person no
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longer holds any Common Stock received by such Person on the Effective Date,
such Person shall no longer be deemed to be a Stockholder for purposes of this
Agreement.
(c) The parties hereto recognize that irreparable damage will
result if this Agreement shall not be specifically enforced. If any dispute
arises concerning any Company Equity Securities hereunder, the parties hereto
agree that an injunction may be issued to compel specific performance of any
term of this Agreement pending determination of such controversy and that no
bond or other security may be required in connection therewith. If any dispute
arises concerning the right or obligation of the Stockholders or the Company to
purchase or sell any Company Equity Securities subject hereto, such right or
obligation shall be enforceable by a decree of specific performance. Such
remedies shall, however, not be exclusive and shall be in addition to any other
remedy which the parties may have.
Section 4.2 Notices. Any and all notices, demands, consents,
approvals, requests or other communications which the Company or any Stockholder
may desire or be required to give hereunder (collectively, "Notices") shall be
by personal delivery, facsimile, by overnight courier or by prepaid certified
mail to the Company at c/o Harvest Partners, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; facsimile (▇▇▇) ▇▇▇-▇▇▇▇,
and to the Stockholders at their addresses referred to in Exhibit A, Exhibit B,
Exhibit C or, as the case may be, Exhibit D or such other address as a
Stockholder may from time to time designate to the Company. Any Stockholder may
designate another address or change its address for Notices hereunder by a
Notice given pursuant to this Section. A Notice sent in compliance with the
provisions of this Section shall be deemed delivered when actually received by
the party to whom sent. Rejection or other refusal to accept or the inability to
deliver because of a changed address or addressee of which no Notice was given
as provided in this Section shall be deemed to be receipt of the Notice sent.
Section 4.3 Entire Agreement; Amendment and Waivers. This
Agreement constitutes the entire agreement between the parties hereto pertaining
to the subject matter hereof, and fully supersedes any and all prior agreements
or understandings between the parties hereto pertaining to the subject matter
hereof. This Agreement may be amended or waived, each party hereto may take any
action herein prohibited or omit to take action herein required to be performed
by it and any breach of or compliance with any covenant, agreement, warranty or
representation may be waived, only by the written consent or written waiver of
holders of at least a majority of the Common Stock Equivalents; provided,
however, that if any Stockholder shall be disproportionately and adversely
affected by any such amendment or waiver, such amendment or waiver shall only be
effective against such Stockholder upon receipt of the written consent or waiver
of Stockholders holding at least a majority of the Common Stock Equivalents held
by the Stockholder disproportionately and adversely affected by such amendment
or waiver; provided, further, however, that, with respect to the definitions of
"Affiliate", "Harvest Entity", "Incentive Securities", "Original Financial
Stockholders", or "Registrable Securities", to 2.1(b), 2.2(a), Article III or to
this Section 4.3, if any Stockholder shall be adversely affected by any such
amendment or waiver, such amendment or waiver shall only be effective against
such Stockholder upon receipt of the written consent or waiver of Stockholders
holding at least a majority of the Common Stock Equivalents held by the
Stockholders adversely affected by such amendment or waiver including, in any
event, the written consent or waiver of one of the Original Financial
Stockholders; provided, further, however, that any amendment or waiver of
Section 2.1(a)(z) or this proviso shall only be effective upon receipt of the
written consent or waiver of Saw Mill and provided, further, however, that any
amendment or waiver of Section 2.1(c)(y) or this proviso shall only be effective
upon receipt of the written consent or
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waiver of Subordinated Loan Holders holding a majority of the Common Stock
Equivalents represented by the Company Equity Securities which were distributed
on the date hereof by Holdings I to its shareholders who are party to the Senior
Subordinated Loans.
Section 4.4 Section Headings. The section headings used in
this Agreement are intended solely for convenience of reference and shall not in
any manner amplify, limit, modify or otherwise be used in the interpretation of
any of the provisions hereof.
Section 4.5 Counterparts. This Agreement may be executed in
several counterparts and all such executed counterparts shall constitute a
single agreement, binding on all of the parties hereto, their successors and
their assigns, notwithstanding that all of the parties hereto are not
signatories to the original or to the same counterpart. Each counterpart
signature page so executed may be attached to a master counterpart of this
Agreement to be kept by the Company at the principal office of the Company and
such master counterpart as well as any and all other counterparts executed by
any of the parties hereto shall constitute a single agreement.
Section 4.6. Severability. In case any one or more of the
provisions contained in this Agreement shall be invalid or unenforceable in any
jurisdiction, the validity and enforceability of all remaining provisions
contained herein shall not in any way be affected or impaired thereby, and the
invalid or unenforceable provisions shall be interpreted and applied so as to
produce as near as may be the economic result intended by the parties hereto.
Section 4.7. Governing Law. This Agreement, including its
existence, validity, construction and operating effect, and the rights of each
of the parties hereto, shall be governed by and construed in accordance with the
laws of the State of
Delaware without regard to principles of conflict of laws.
Section 4.8. Incorporation by Reference. Every Schedule
attached to this Agreement and referred to herein is incorporated in this
Agreement by reference unless this Agreement otherwise expressly provides.
Section 4.9. Limitation on Liability. The Stockholders shall
not be bound by, or be personally liable for, by reason of being a Stockholder,
a judgment, decree or order of a court or in any other manner, for the expenses,
liabilities or obligations of the Company.
Section 4.10. Variation of Pronouns. All pronouns and any
variations thereof shall be deemed to refer to masculine, feminine, or neuter,
singular or plural, as the identity of the person or persons may require.
Section 4.11. Further Action. Each Stockholder agrees to
perform all further acts and execute, acknowledge, and deliver any documents
which may be reasonably necessary, appropriate or desirable to carry out the
provisions of this Agreement.
Section 4.12. Termination. This Agreement shall terminate in
its entirety upon a liquidation of the Company; provided, however, that if the
Exchange is not consummated by August 31, 2001, this Agreement shall terminate.
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Section 4.13. Benefits Only to Parties. Nothing expressed by
or mentioned in this Agreement is intended or shall be construed to give any
Person (other than the parties hereto and their respective successors) any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and their respective successors, and for the benefit of no other
Person except as otherwise specifically provided for in this Agreement.
Section 4.14. Saw Mill Ownership. For purposes of determining
ownership of Common Stock under this Agreement, Saw Mill, Saw Mill Investments,
L.L.C. and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall be deemed to be a single entity.
Section 4.15. Termination of the Equityholders Agreement. The
Equityholders Agreement shall terminate on the date on which the Exchange is
consummated.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
GLOBAL POWER EQUIPMENT GROUP INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO
24
[Signature page for this
Registration Rights Agreement]
HARVEST PARTNERS III, L.P.
By: Harvest Associates III, LLC, its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager
25
[Signature page for this
Registration Rights Agreement]
HARVEST PARTNERS III
BETEILIGUNGSGESELLSCHAFT
BURGERLICHEN RECHTS MIT
HAFTUNGSBESCHRANKUNG
By: Harvest Associates III, LLC, its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager
26
[Signature page for this
Registration Rights Agreement]
Q.P.O.N. BETEILIGUNGS GMBH
By: /s/ Gundel Clouth /s/ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director Senior Vice President
27
[Signature page for this Registration Right Agreement]
BT INVESTMENT PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ Cicarda
---------------------------------
Name: ▇▇▇▇▇▇▇▇ Cicarda
Title: Director
28
[Signature page for this
Registration Rights Agreement]
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
29
[Signature page for this
Registration Rights Agreement]
DLJ CAPITAL PARTNERS V, LLC
By: DLJ LBO Plans Management Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
30
[Signature page for this
Registration Rights Agreement]
ARES LEVERAGED INVESTMENT
FUND II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
31
[Signature page for this
Registration Rights Agreement]
CARLYLE HIGH YIELD PARTNERS, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Managing Director
32
[Signature page for this Registration Rights Agreement]
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
33
[Signature page for this Registration Rights Agreement]
DLJ INVESTMENT FUNDING II, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
34
[Signature page for this Registration Rights Agreement]
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ Investment Partners, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
35
[Signature page for this Registration Rights Agreement]
DLJ INVESTMENT PARTNERS II, L.P.
By: DLJ Investment Partners II, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
36
[Signature page for this Registration Rights Agreement]
GSC PARTNERS CDO FUND, LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
37
[Signature page for this Registration Rights Agreement]
HIGHLAND LEGACY LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
38
[Signature page for this Registration Rights Agreement]
▇.▇. ▇▇▇▇▇▇▇ MARKET VALUE FUND, L.P.
By: Whitney Market Value GP, Ltd.,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Director
39
[Signature page for this Registration Rights Agreement]
NORSE CBO, LTD
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to
delegated authority
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
40
[Signature page for this Registration Rights Agreement]
REGIMENT CAPITAL, LTD
By: Regiment Capital Management, LLC
as its Investment Advisor
By: Regiment Capital Advisors, LLC
its Manager and pursuant to
delegated authority
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
41
[Signature page for this Registration Rights Agreement]
▇▇▇▇▇▇▇▇▇ CLO LTD.
By: ▇▇▇▇▇▇▇▇▇ Capital Partners LLC
as its Collateral Manager
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
42
[Signature page for this Registration Rights Agreement]
▇▇▇▇▇▇▇▇▇/RMF TRANSATLANTIC CDO LTD.
By: ▇▇▇▇▇▇▇▇▇ Capital Partners LLC
as its Collateral Manager
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
43
[Signature page for this Registration Rights Agreement]
ARES LEVERAGED INVESTMENT FUND, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
44
[Signature page for this Registration Rights Agreement]
SAW MILL INVESTMENTS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
45
[Signature page for this Registration Rights Agreement]
SMC POWER HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Member
46
[Signature page for this Registration Rights Agreement]
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
47
[Signature page for this Registration Rights Agreement]
PARIBAS PRINCIPAL INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
48
[Signature page for this Registration Rights Agreement]
INDOSUEZ GEEG PARTNERS
By: Indosuez ▇▇ ▇▇, Inc., its
Managing G.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
49
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
50
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
51
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
52
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
53
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
54
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇
55
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
56
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇
57
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
58
[Signature page for this Registration Rights Agreement]
/s/ Tike ▇▇▇▇
---------------------------------
Tike ▇▇▇▇
59
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
60
[Signature page for this Registration Rights Agreement]
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
61
[Signature page for this Registration Rights Agreement]
/s/ Bengt Sohlen
---------------------------------
Bengt Sohlen
62
[Signature page for this Registration Rights Agreement]
NATIONAL CITY EQUITY PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
63
[Signature page for this Registration Rights Agreement]
GREAT LAKES CAPITAL INVESTMENTS II,
LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Member
64
[Signature page for this Registration Rights Agreement]
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
65
[Signature page for this Registration Rights Agreement]
BANCBOSTON CAPITAL INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
66
[Signature page for this Registration Rights Agreement]
LIBERTY MUTUAL INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
67
[Signature page for this Registration Rights Agreement]
PPM AMERICA PRIVATE EQUITY FUND, L.P.
By: PPM America Capital Partners, LLC
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager
68
[Signature page for this Registration Rights Agreement]
CASCADE INVESTMENT PARTNERS, L.L.C.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ MEZZANINE CAPITAL
PARTNERS II, L.L.C., Sole Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
69
[Signature page for this Registration Rights Agreement]
MAGNETITE ASSET INVESTORS L.L.C.
By: Black Rock Financial Management, Inc.,
as Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
70
[Signature page for this Registration Rights Agreement]
GOLDEN TREE ASSET MANAGEMENT, L.P.,
as Agent for Highbridge International
LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Partner
71
[Signature page for this Registration Rights Agreement]
GOLDEN TREE ASSET MANAGEMENT, L.P.,
as Agent for Deutsche Bank Sharps
▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Partner
72
[Signature page for this Registration Rights Agreement]
GOLDEN TREE HIGH YIELD PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Partner
73
EXHIBIT A
Original Financial Stockholders
SMC Power Holdings, L.L.C.
Saw Mill Investments, L.L.C.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Paribas Principal Incorporated
Indosuez GEG Partners
74
EXHIBIT B
Management Stockholders
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Tike ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
75
EXHIBIT C
Former Holdings I Stockholders
Harvest Partners III, L.P.
Harvest Partners III, GbR
BT Investment Partners, Inc.
Q.P.O.N. Beteiligungs GmbH
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Magnetite Asset Investors L.L.C.
Golden Tree Asset Management, L.P.,
as Agent for Highbridge International LLC
Golden Tree Asset Management, L.P.
as Agent for Deutsche Bank Sharps ▇▇▇▇▇▇ Inc.
Golden Tree High Yield Partners, L.P.
DLJ Capital Partners V, LLC
Ares Leveraged Investment Fund II, ▇.▇.
▇▇▇▇▇ Bank of Texas, N.A. as Trustee for Carlyle High Yield Partners, L.P.
DLJ ESC II, L.P.
DLJ Investment Funding II, Inc.
DLJ Investment Partners, L.P.
DLJ Investment Partners II, L.P.
GSC Partners CDO Fund, Limited
Highland Legacy Limited
▇.▇. ▇▇▇▇▇▇▇ Market Value Fund, L.P.
Norse CBO, LTD
Regiment Capital, Ltd.
▇▇▇▇▇▇▇▇▇ CLO, Ltd.
▇▇▇▇▇▇▇▇▇/RMF Transatlantic CDO, Ltd.
76
EXHIBIT C
Page 2
Ares Leveraged Investment Fund, L.P.
77
EXHIBIT D
Former Holdings II Members
National City Equity Partners, Inc.
Great Lakes Capital Investments II, LLC
▇▇▇▇▇▇ Financial, Inc.
Banc Boston Capital Inc.
Liberty Mutual Insurance Company
PPM America Private Equity Fund, L.P.
