Exhibit 4.2
SF HOLDINGS GROUP, INC.
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is made as of January
26, 2002, among SF HOLDINGS GROUP, INC., a Delaware corporation (the "Company"),
and each of the warrant holders listed on the Schedule of Subdebt Investors
attached hereto and as may be amended from time to time (the "Subdebt
Investors").
The Initial Subdebt Investor shall purchase Warrants pursuant to the
terms of that certain Warrant Agreement, of even date herewith, between the
Company, the Initial Subdebt Investor and certain other parties (the "Warrant
Agreement"). Unless otherwise provided in this Agreement, capitalized terms used
herein shall have the meanings set forth in paragraph 9 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. At any time after the Company has
completed an initial public offering of shares of Common Stock under the
Securities Act, the Majority Subdebt Investors may request registration under
the Securities Act of all or any portion of their Registrable Securities, as the
case may be, on Form S-1 or S-2 or any similar long-form registration statement
("Long-Form Registrations") or, if available, on Form S-3 or any similar
short-form registration statement that the Company is eligible to use
("Short-Form Registrations"). All registrations requested pursuant to this
paragraph 1(a) are referred to herein as "Demand Registrations." Each request
for a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered. Within ten days after receipt of such
request, the Company shall give written notice of such requested registration to
all other holders of Registrable Securities, as the case may be, and, subject to
the terms of paragraph (c) hereof, shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the Company's
notice.
(b) Number of Registrations. The Subdebt Investors shall be entitled
to request one Demand Registration in which the Company shall pay all
Registration Expenses; provided that the aggregate offering value of the
Registrable Securities requested to be registered in any Demand Registration
must equal at least $3,000,000 if it is a Long-Form Registration and $1,000,000
if it is a Short-Form Registration. A registration shall not count as the
permitted Demand Registration if (i) it does not become effective (unless such
Demand Registration has not become effective due solely to the fault of the
holders requesting such registration), (ii) the holders of the Registrable
Securities to be included in such registration have not been able to register at
least 80% of the Registrable Securities initially requested to be registered by
such holders in such registration, (iii) after it has become effective, such
registration is interfered with by any stop order, injunction or other order or
requirement of the Securities and Exchange Commission or other governmental
agency or court for any reason, resulting in a failure to
consummate the offering of Registrable Securities offered thereby, or (iv) after
a registration statement with respect thereto has become effective, the offering
of Registrable Securities offered thereby is not consummated because any of the
following shall have occurred: (A) trading in securities generally on the New
York or American Stock Exchange shall have been halted, (B) a banking moratorium
shall have been declared by New York or United States authorities or (C) any
event similar to the events described in the foregoing clauses (A) or (B) which,
in the reasonable judgment of the Majority Subdebt Investors, materially and
adversely affects the market for equity securities; provided that in any event
the Company shall pay all Registration Expenses in connection with any
registration initiated as a Demand Registration whether or not it has become
effective and whether or not such registration has counted as the permitted
Demand Registration. All Long-Form Registrations may, at the request of the
holders of a majority of the Registrable Securities requested to be registered
in such registration, be underwritten registrations.
(c) Priority on Demand Registrations. The Company shall not include
in any Demand Registration requested by the Majority Subdebt Investors any
securities which are not Registrable Securities without the prior written
consent of the Majority Subdebt Investors, not to be unreasonably withheld. If
multiple Subdebt Investors contemporaneously request a Demand Registration, all
such Subdebt Investors shall, subject to the following sentence, be included in
the same Demand Registration. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities and, if permitted hereunder,
other securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold therein
without adversely affecting the marketability of the offering, the Company shall
include in such registration prior to the inclusion of any securities which are
not Registrable Securities the number of Registrable Securities requested to be
included which in the opinion of such underwriters can be sold without adversely
affecting the marketability of the offering, pro rata among the respective
holders thereof on the basis of the number of Registrable Securities owned by
each such holder (e.g., if Investor A owns 2,000,000 shares of Common Stock and
Investor B owns 500,000 shares of Common Stock and both contemporaneously
request a Demand Registration, but underwriters for such offering limit the
registration to 1,500,000 shares of Common Stock, Investor A will be entitled to
include 1,200,000 shares of its Common Stock (i.e. 60% of its holdings) and
Investor B will be entitled to include 300,000 shares of its Common Stock (i.e.
60% of its holdings)).
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within three months after the
effective date of a previous registration in which the holders of Registrable
Securities were given piggyback rights pursuant to paragraph 2 and in which at
least 80% of the Registrable Securities requested to be included were included
in an effective registration statement and offered for sale thereunder. The
Company may postpone for up to three months in the aggregate during any 12-month
period the filing or the effectiveness of a registration statement for a Demand
Registration if the Company's board of directors determines in its reasonable
good faith judgment that such Demand Registration would reasonably be expected
to have a material adverse effect on any proposal or plan by the Company or any
of its Subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction; provided that in such event, the holders
of Registrable Securities initially requesting such Demand Registration shall be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration shall not count as the permitted Demand Registration hereunder and
the Company shall pay all Registration Expenses in connection with such
registration.
(e) Selection of Underwriters. The holders of a majority of the
Registrable Securities initially requesting such registration shall have the
right to select the investment banker(s) and manager(s) to administer the
offering, subject to the approval of the Company, which shall not be
unreasonably withheld or delayed.
(f) Other Registration Rights. Any right given by the Company to any
holder or prospective holder of the Company's securities in connection with the
registration of securities shall be conditioned such that it shall be consistent
with the rights of the holders of Registrable Securities provided in this
Agreement and shall not materially adversely affect the right of the holders of
Registrable Securities to participate in Piggyback Registrations in the manner
set forth in this Agreement. In addition to the foregoing, until such time as
there are no longer any Registrable Securities pursuant to this Agreement or
unless consented to in writing by the Majority Subdebt Investors, (i) the
Company shall not grant any registration rights to, or allow the participation
in any registration by, the Principals other than as provided in paragraph 2,
and (ii) shall not grant registration rights with respect to the equity
securities of the Company that in the aggregate represent 27% or more of the
Company's outstanding equity securities on a fully diluted basis. Except as
provided for herein, no holder of the Company's securities owns or possesses any
registration rights with respect to any of the Company's equity securities other
than as provided in that certain Amended and Restated Registration Rights
Agreement dated as of March 12, 1998, among the Company, The Xxxxx Group, Inc.,
a Delaware corporation, Albion Alliance Mezzanine Fund, L.P., a Delaware limited
partnership ("Albion"), and The Equitable Life Assurance Society of the United
States, a New York insurance company ("Equitable") and that certain
Stockholders' Rights Agreement made and entered into as of March 12, 1998, among
the Company and the persons listed on Schedule I attached hereto.
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register
any of its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
shall give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and, subject to the terms of paragraphs
2(c) and 2(d) hereof, shall include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 20 days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all
Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a price
range acceptable to the Company, the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities and all other securities requested to be included in such
registration pursuant to registration rights held by such holders, but excluding
any securities requested to be included in such registration by the Principals,
pro rata among the holders thereof on the basis of the number of shares owned by
each such holder and (iii) third, other securities requested to be included in
such registration pursuant to registration rights held by such holders.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration pursuant to registration rights held
by such holders, (ii) second, the Registrable Securities and all other
securities requested to be included in such registration pursuant to
registration rights held by such holders, but excluding any securities requested
to be included in such registration by the Principals, pro rata among the
holders of such securities on the basis of the number of securities owned by
such holders and (iii) third, other securities requested to be included in such
registration pursuant to registration rights held by such holders.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the investment banker(s) and manager(s) for the offering
must be of nationally recognized standing.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least 180 days has elapsed from the effective date of such
previous registration.
3. Holdback Agreements.
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(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 90-day
period beginning on the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree;
provided that all officers, directors and stockholders owning four percent (4%)
or more (on a fully diluted basis, treating all outstanding options, rights and
warrants to acquire equity securities of the Company as fully exercised, and
treating all securities convertible into or exchangeable for equity securities
of the Company as fully converted or exchanged) of the Company's equity
securities and Albion and Equitable (if they then individually own at least 50%
of the Company's securities owned by it as of the date hereof) shall enter into
similar agreements; provided further, however, if the holders of Registrable
Securities are required by the underwriters managing the registered public
offering to execute a "lock-up" agreement which restricts such holders' ability
to sell securities for a period shorter than 90 days, then the 90-day period in
this Section 3 shall be automatically lowered to the period specified in the
"lock-up" agreement.
(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
90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree.
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 best efforts to affect 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 (within 60 days after the end of the period within
which requests for registration may be given to the Company) file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration
statement to become effective (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to the counsel selected by the holders of a majority of the
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents shall be subject to the review
and comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 90 days and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as
such seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company 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, (iii) consent to general service of
process in any such jurisdiction or (iv) register or qualify such Registrable
Securities under any jurisdiction other than the United States);
(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 known to the Company 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 so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact known to the
Company or omit to state any fact known to the Company necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange or approved for quotation on any automated quotation system
on which similar securities issued by the Company are then listed or approved
for quotation;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the 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
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(m) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(n) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters, which letter shall be addressed to
the underwriters; and use its reasonable best efforts to cause such cold comfort
letter to also be addressed to the holders of such Registrable Securities; and
(o) obtain an opinion from the Company's outside counsel in
customary form and covering such matters of the type customarily covered by such
opinions, which opinion shall be addressed to the underwriters and the holders
of such Registrable Securities.
5. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, 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 as provided in this
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which
similar securities issued by the Company are then listed or on the NASD
automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the Majority Subdebt Investors
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the Majority Subdebt Investors initially requesting such
registration and for the reasonable fees and disbursements of one additional
counsel retained by the Majority Subdebt Investors for the purpose of rendering
a legal opinion on behalf of such holder in connection with any underwritten
Demand Registration or Piggyback Registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
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(a) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, each holder of Registrable Securities, its officers,
directors, agents, and employees and each Person who controls such holder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and reasonable expenses (including reasonable attorney's fees)
caused by (i) any untrue or alleged untrue statement of material fact contained
(A) in any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or (B) in any application or other
document or communication (in this Section 6 collectively called an
"application") filed by the Company in order to qualify any securities covered
by such registration statement under "blue sky" or securities laws, or (ii) any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such holder expressly for use therein or by such holder's failure to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company 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 law, shall indemnify the Company, its
directors, officers, agents and employees and each Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities and reasonable expenses (including reasonable attorney's
fees) resulting from (i) 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 in any application or (ii) 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 notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed by
the indemnifying party, 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 in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The indemnifying party shall not, except with the approval of
each indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to each indemnified party of a release from all
liability in respect to such claim or litigation without any payment or
consideration provided by such indemnified party.
(e) 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.
(f) 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 Registrations. 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 (provided that no holder of Registrable Securities
will be required to sell more than the number of Registrable Securities that
such holder has requested the Company to include in any registration) and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
8. Current Public Information. At all times after the Company has
filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Exchange Act,
the Company will file all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
Securities and Exchange Commission thereunder, and will take such further action
as any holder or holders of Registrable Securities may reasonably request, all
to the extent required to enable such holders to sell Registrable Securities
pursuant to Rule 144 adopted by the Securities and Exchange Commission under the
Securities Act (as such rule may be amended from time to time) or any similar
rule or regulation hereafter adopted by the Securities and Exchange Commission.
9. Definitions.
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"Affiliate" of a Person means any other Person, directly or
indirectly controlling, controlled by or under common control with such Person,
any partner of a Person which is a partnership and any member of a person which
is a limited liability company.
"Audax" means, collectively, Audax Mezzanine Fund, L.P., a
Delaware limited partnership, Audax Co-Invest, L.P., a Delaware limited
partnership, Audax Trust Co-Invest, L.P., a Delaware limited partnership, or
any of their affiliates.
"Common Stock" means shares of Common Stock, $0.001 par value, of
the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Initial Subdebt Investor" means Xxxxxxxxx & Company, Inc.
"Majority Subdebt Investors" means holders of a majority of the then
outstanding Registrable Securities of all Subdebt Investors.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Principals" means Xxxxxx Xxxxxx, his spouse, his lineal descendants
and any trust, corporation, partnership, association, limited liability company
or other entity in which Xxxxxx Xxxxxx and/or his lineal descendants hold at
least a majority of the total, combined outstanding voting power or similar
controlling interest.
"Registrable Securities" means (i) any shares of Common Stock issued
to the Subdebt Investors upon the exercise of Warrants issued to the Subdebt
Investors pursuant to the
Warrant Agreement, (ii) any shares of Common Stock otherwise acquired by the
Subdebt Investors and (iii) any shares of Common Stock issued or issuable
directly or indirectly with respect to the securities referred to in clauses (i)
or (ii) above by way of share dividend or share split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, including a recapitalization or exchange. For purposes of this
Agreement, a Subdebt Investor shall be deemed to be a holder of Registrable
Securities, and the Registrable Securities shall be deemed to be in existence,
whenever such Subdebt Investor has the right to acquire directly or indirectly
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, and such Person shall be entitled to exercise the
rights of a holder of Registrable Securities hereunder. As to any particular
Registrable Securities, such securities shall 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 under the Securities Act (or any
similar rule then in force) or repurchased by the Company or any Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Subdebt Investors" means, collectively, the Initial Subdebt
Investor and any transferee, including but not limited to the TCW/Crescent
Investors and Audax, who, from time to time, acquires Registrable Securities
from one or more of them and becomes party to this Agreement by executing and
delivering to the Company an instrument in form satisfactory to the Company
pursuant to which such Person agrees to be bound by the terms of this Agreement
to the same extent as the Initial Subdebt Investor, together with an amendment
to the Schedule of Subdebt Investors reflecting such new Subdebt Investor. Such
amended Schedule of Subdebt Investors shall replace the then-current Schedule of
Subdebt Investors.
"TCW/Crescent Investors" means, collectively, TCW/Crescent Mezzanine
Partners III, L.P., a Delaware limited partnership, or TCW/Crescent Mezzanine
Trust III, a Delaware business trust, or any of their Affiliates (each,
individually, a "TCW/Crescent Investor").
10. Miscellaneous.
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(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, in addition to any other rights and
remedies existing in its favor, any party shall be entitled to specific
performance and/or other injunctive relief from any court of law or equity of
competent jurisdiction (without posting any bond or other security) 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 at least a majority of the Subdebt
Registrable Securities.
(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 each Subdebt Investor at the address indicated
on the Schedule of Subdebt Investors, and to the Company at the address
indicated below:
SF HOLDINGS GROUP, INC.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
With a copy to:
--------------
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
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.
[Signature Page Follows]
----------------------
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Agreement on the day and year first above written.
COMPANY: SF HOLDINGS GROUP, INC.
-------
By: /s/ Xxxx X. Xxxxxxx
------------------------
Its: Senior Vice President
SUBDEBT INVESTORS: XXXXXXXXX & COMPANY, INC.
-----------------
By: /s/ Xxxx Xxxx
----------------------------
Name: Xxxx Xxxx
Title: Executive Vice President
SCHEDULE OF SUBDEBT INVESTORS
-----------------------------
Name and Address Number of Shares
---------------- ----------------
Xxxxxxxxx & Company, Inc. 76,082
00000 Xxxxx Xxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopy No.: (000) 000-0000
