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PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
dated May 11, 1998
between
LPA HOLDING CORP.
and
LPA INVESTMENT LLC
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TABLE OF CONTENTS
SECTION 1. Definitions.................................................... 1
SECTION 2. Demand Registration............................................ 3
SECTION 3. Expenses....................................................... 4
SECTION 4. Preparation and Filing......................................... 4
SECTION 5. Indemnification................................................ 7
SECTION 6. Underwriting Agreement......................................... 10
SECTION 7. Information by Stockholder..................................... 11
SECTION 8. Exchange Act Compliance........................................ 11
SECTION 9. No Conflict of Rights.......................................... 11
SECTION 10. Restriction on Transfer....................................... 11
SECTION 11. Termination................................................... 11
SECTION 12. Severability.................................................. 12
SECTION 13. Entire Agreement.............................................. 12
SECTION 14. Successors and Assigns........................................ 12
SECTION 15. Counterparts.................................................. 12
SECTION 16. Remedies...................................................... 12
SECTION 17. Notices....................................................... 13
SECTION 18. Governing Law; Jurisdiction; Venue; Process................... 14
SECTION 19. Further Assurances............................................ 14
SECTION 20. Modifications; Amendments; Waivers............................ 15
SECTION 21. Headings...................................................... 15
SECTION 22. Waiver........................................................ 15
SECTION 23. Mutual Waiver of Jury Trial................................... 15
PREFERRED STOCK
REGISTRATION RIGHTS AGREEMENT
dated as of May 11, 1998,
between LPA HOLDING CORP., a
Delaware corporation (the
"Company"), and LPA INVESTMENT
LLC, a Delaware limited
liability company (the
"Stockholder").
The Stockholder currently owns (or has the right to acquire)
the number of shares of Series A Redeemable Preferred Stock (the "Preferred
Stock") of the Company set forth opposite the name of such Stockholder on
Schedule I. The parties hereto deem it to be in their best interests to set
forth their rights and obligations in connection with public offerings and sales
of shares of Preferred Stock. Accordingly, the parties agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
"Class A Common Stock" shall mean the Class A Common Stock,
par value $.01 per share, of the Company.
"Class B Common Stock" shall mean the Class B Common Stock,
par value $.01 per share, of the Company.
"Commission" means the Securities and Exchange Commission or
any other Federal agency at the time administering the Securities Act.
"Common Stock" means the Class A Common Stock and the Class B
Common Stock of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, and
the rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect from time to time.
"Initial Public Offering" means the first underwritten public
offering of Common Stock for sale to the public for the account of the Company
and offered on a "firm commitment" or "best efforts" basis pursuant to an
offering registered under the Securities Act with the Commission on Form S-1 or
its then equivalent.
"LPA Investment" means LPA Investment LLC, a Delaware limited
liability company.
"Other Shares" means at any time those shares of Common Stock
which do not constitute Primary Shares.
"Preferred Stock" shall have the meaning set forth in the
preamble to this Agreement.
"Primary Shares" means at any time the authorized but unissued
shares of Common Stock or shares of Common Stock held by the Company in its
treasury.
"Registrable Shares" means at any time, with respect to any
Stockholder, the Restricted Shares held by such Stockholder which constitute
Preferred Stock.
"Requisite Stockholders" means at any time, the Stockholders
holding not less than 50% (by number of shares) of the then outstanding
Registrable Shares.
"Restricted Shares" means at any time, with respect to any
Stockholder, the shares of Preferred Stock which are held by such Stockholder
and which have not previously been sold to the public pursuant to a registration
statement under the Securities Act or pursuant to Rule 144 or which are not (or
would not be, upon any such exercise, exchange or conversion) eligible for sale
by the holder thereof under Rule 144(k) or any successor rule thereto or any
complementary rule thereto.
"Rule 144" means Rule 144 promulgated under the Securities Act
or any successor rule thereto or any complementary rule thereto.
"Securities Act" means the Securities Act of 1933, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
"Securities Purchase Agreement" means the Securities Purchase
Agreement dated the date hereof, among the Company, LPA Investment and the other
parties thereto, as the same may be amended or modified.
"Selling Stockholder" shall have the meaning set forth in
Section 5(b).
"Selling Stockholders' Counsel" shall have the meaning set
forth in Section 5(b).
"Stockholders" means LPA Investment and any person or entity
that acquires Restricted Shares directly or indirectly from LPA Investment in
accordance with Section 14.
"Transfer" means any disposition of any Restricted Shares or
of any interest therein which constitutes a sale within the meaning of the
Securities Act, other than any disposition pursuant to an effective registration
statement under the Securities Act and complying with all applicable state
securities and "blue sky" laws.
SECTION 2. Demand Registration.
(a) If the Company shall be requested by the Requisite
Stockholders to effect a registration under the Securities Act of Registrable
Shares in accordance with this Section, then the Company shall promptly give
written notice of such proposed registration to all holders of Restricted Shares
and shall offer to include in such proposed registration any Registrable Shares
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requested to be included in such proposed registration by such holders who
respond in writing to the Company's notice within 15 days after delivery of such
notice (which response shall specify the number of Registrable Shares proposed
to be included in such registration). The Company shall promptly use its best
efforts to effect such registration on an appropriate form, including Form S-2
or S-3, if available, under the Securities Act of the Registrable Shares which
the Company has been so requested to register; provided, however, that the
Company shall not be obligated to effect any registration under the Securities
Act except in accordance with the following provisions:
(i) the Company shall not be obligated to file more than
one registration statement in total pursuant to this Section which
registration statement was initiated pursuant to this Section and
becomes effective or which is rescinded by the Requisite Stockholders
without reimbursement as specified in the last paragraph of this
Section;
(ii) the Company shall not be obligated to file any
registration statement during any period in which any other
registration statement (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto) pursuant to
which Primary Shares are to be or were sold has been filed and not
withdrawn or has been declared effective within the prior 90 days;
(iii) with respect to the registration pursuant to this
Section, the Company may include in such registration any Primary
Shares or Other Shares; provided, however, that if the managing
underwriter advises the Company that the inclusion of all Registrable
Shares, Primary Shares and Other Shares proposed to be included in such
registration would interfere with the successful marketing (including
pricing) of all such securities, then the number of Registrable Shares,
Primary Shares and Other Shares proposed to be included in such
registration shall be included in the following order:
(A) First, the Registrable Shares held by all
Stockholders, pro rata based upon the number of Restricted
Shares owned by each such Stockholder at the time of such
registration;
(B) Second, the Primary Shares; and
(C) Third, the Other Shares.
(b) A requested registration under this Section may be
rescinded by written notice to the Company by the Requisite Stockholders; such
rescinded registration shall not count as a registration statement initiated
pursuant to this Section for purposes of paragraph (a) above if such
registration statement is rescinded prior to the effective date thereof and if
the Requisite Stockholders shall have reimbursed the Company for all
out-of-pocket expenses incurred by the Company in connection with such rescinded
registration. A registration shall not count as a registration statement
initiated pursuant to this Section for purposes of paragraph (a) above
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unless it becomes effective and the Requisite Stockholders are able to sell at
least 80% of the Registrable Shares sought to be included in such registration
statement.
SECTION 3. Piggyback Registration.
If at any time after an Initial Public Offering the Company
proposes for any reason to register Primary Shares or Other Shares under the
Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto or other than in connection with
an exchange offer or offering solely to the Company's stockholders), it shall
promptly give written notice to each Stockholder of its intention to so register
the Primary Shares or Other Shares and, upon the written request, given within
15 days after delivery of any such notice by the Company, of any Stockholder to
include in such registration Registrable Shares held by such Stockholder (which
request shall specify the number of Registrable Shares proposed to be included
in such registration), the Company shall use its best efforts to cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however, that if the managing underwriter advises the Company that the
inclusion of all Registrable Shares or Other Shares proposed to be included in
such registration would interfere with the successful marketing (including
pricing) of the Primary Shares proposed to be registered by the Company, then
the number of Primary Shares, Registrable Shares and Other Shares proposed to be
included in such registration shall be included in the following order:
(a) first, the Primary Shares;
(b) second, the Other Shares (other than those shares of
Common Stock which are not subject to any registration rights agreement); and
(c) third, the Registrable Shares held by the Selling
Stockholders (as defined below), pro rata based upon the number of Restricted
Shares (based upon Common Stock Equivalents) owned by each such Stockholder at
the time of such registration.
SECTION 4. Expenses.
The Company shall bear the expense of any registrations
effected pursuant to Sections 2 and 3 including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
NASD), fees and expenses of complying with securities and blue sky laws,
printing expenses, and fees and expenses of the Company's counsel and
accountants, and the fees and expenses of the Selling Stockholders' Counsel (as
defined below), but excluding any underwriters' or brokers' discounts or
commissions and the fees of any counsel to any Selling Stockholder, other than
the Selling Stockholders' Counsel.
SECTION 5. Preparation and Filing.
If and whenever the Company is under an obligation pursuant to
the provisions of this Agreement to use its best efforts to effect the
registration of any Registrable Shares, the Company shall, as expeditiously as
practicable:
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(a) with respect to a registration under Sections 2 and 3, use
its best efforts to cause a registration statement that registers such
Registrable Shares to become and remain effective for a period of 180 days or
until all of such Registrable Shares have been disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a prospectus
relating thereto or any amendments or supplements relating to such a
registration statement or prospectus, to each holder of Registrable Shares, to
any counsel to any seller of Registrable Shares (the "Selling Stockholder") and
to one counsel selected by the holders of a majority of such Registrable Shares
(the "Selling Stockholders' Counsel"), copies of all such documents proposed to
be filed (it being understood that such five-business-day period need not apply
to successive drafts of the same document proposed to be filed so long as such
successive drafts are supplied to such counsel in advance of the proposed filing
by a period of time that is customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
at least the periods set forth in Section 5(a) or until all of such Registrable
Shares have been disposed of (if earlier) and to comply with the provisions of
the Securities Act with respect to the sale or other disposition of such
Registrable Shares;
(d) notify in writing any counsel to any Selling Stockholder
and the Selling Stockholders' Counsel promptly (i) of the receipt by the Company
of any notification with respect to any comments by the Commission with respect
to such registration statement or prospectus or any amendment or supplement
thereto or any request by the Commission for the amending or supplementing
thereof or for additional information with respect thereto, (ii) of the receipt
by the Company of any notification with respect to the issuance by the
Commission of any stop order suspending the effectiveness of such registration
statement or prospectus or any amendment or supplement thereto or the initiation
or threatening of any proceeding for that purpose and (iii) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of such Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Shares reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such seller of Registrable Shares to consummate the disposition in such
jurisdictions of the Registrable Shares owned by such seller; provided, however,
that the Company will not be required to qualify generally to do business,
subject itself to general taxation or consent to general service of process in
any jurisdiction where it would not otherwise be required so to do but for this
paragraph (e);
(f) furnish to each seller of such Registrable Shares such
number of copies of a summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with
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the requirements of the Securities Act, and such other documents as such seller
of Registrable Shares may reasonably request in order to facilitate the public
sale or other disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and operations of the
Company to enable the seller or sellers thereof to consummate the disposition of
such Registrable Shares;
(h) notify on a timely basis each seller of such Registrable
Shares at any time when a prospectus relating to such Registrable Shares is
required to be delivered under the Securities Act within the appropriate period
mentioned in paragraph (a) of this Section, of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing and, at the
request of such seller, prepare and furnish to such seller 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 offerees of such shares, 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 light of the circumstances then existing;
(i) make available for inspection by any counsel to any
Selling Stockholder and the Selling Stockholders' Counsel or any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such underwriter
(collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers, directors and
employees to supply all information (together with the Records, the
"Information") reasonably requested by any such Inspector in connection with
such registration statement. Any of the Information which the Company determines
in good faith to be confidential, and of which determination the Inspectors are
so notified, shall not be disclosed by the Inspectors unless (i) the disclosure
of such Information is necessary to avoid or correct a misstatement or omission
in the registration statement, (ii) the release of such Information is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction or
(iii) such Information has been made generally available to the public. The
seller of Registrable Shares agrees that it will, upon learning that disclosure
of such Information is sought in a court of competent jurisdiction, give notice
to the Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by comfort
letters;
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(k) use its best efforts to obtain from its counsel an opinion
or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the
same entity and which may not be the Company) for such Registrable Shares;
(m) issue to any underwriter to which any seller of
Registrable Shares may sell shares in such offering certificates evidencing such
Registrable Shares; provided, however, that the Company shall have the right to
approve any such underwriter with such approval not to be unreasonably withheld;
(n) list such Registrable Shares on any national securities
exchange on which any shares of the Preferred Stock are listed or, if the
Preferred Stock is not listed on a national securities exchange, use its best
efforts to qualify such Registrable Shares for inclusion on the automated
quotation system of the National Association of Securities Dealers, Inc. (the
"NASD") or such national securities exchange as the holders of a majority of
such Registrable Shares shall request;
(o) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings statements (which
need not be audited) covering a period of 12 months beginning within three
months after the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the Securities Act;
and
(p) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares contemplated hereby.
SECTION 6. Indemnification.
In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Company shall indemnify
and hold harmless the seller of such Registrable Shares, its officers and
directors, each underwriter, broker or any other person acting on behalf of such
seller and each other person, if any, who controls any of the foregoing persons
within the meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, (or actions in respect thereof) to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse such seller, such officer or
director, such underwriter, such broker or such other person acting on behalf of
such seller and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating
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or defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in said registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document incident to registration or
qualification of any Registrable Shares in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by such seller or underwriter specifically for use in the preparation thereof;
provided, further, that with respect to any preliminary prospectus, the
foregoing indemnity shall not inure to the benefit of (a) any underwriter or, in
the case of a registration statement filed with respect to an offering which is
not an underwritten offering, any Selling Stockholder, from who the person
asserting any losses, claims, damages and liabilities and judgments purchased
Registrable Shares or (b) any person controlling such underwriter or Selling
Stockholder, if (i) a copy of the prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was
required by law to have been delivered by such underwriter or Selling
Stockholder (as applicable), (ii) the prospectus had not been sent or given by
or on behalf of such underwriter or Selling Stockholder (as applicable) to such
person with or prior to a written confirmation of the sale of the Registrable
Shares to such person, (iii) the prospectus (as so amended and supplemented)
would have cured the defect giving rise to such loss, claim, damage, liability
or judgment and (iv) such failure to deliver the prospectus (as so amended and
supplemented) was not the result of noncompliance by the Company with Section
5(f) hereof.
In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in the preceding paragraph of this Section) the Company,
each director of the Company, each officer of the Company who shall sign such
registration statement, each underwriter, broker or other person acting on
behalf of such seller, each person who controls any of the foregoing persons
within the meaning of the Securities Act and each other seller of Registrable
Shares under such registration statement with respect to any statement or
omission from such registration statement, any preliminary prospectus or final
prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, if such statement or omission was made
in reliance upon and in conformity with written information furnished to the
Company or such underwriter through an instrument duly executed by such seller
specifically for use in connection with the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment, supplement or
document; provided, however, that the obligation to indemnify will be several,
not joint and several, among such sellers of Registrable Shares, and the maximum
amount of liability in respect of such indemnification shall be in proportion to
and limited to, in the case of each seller of Registrable Shares, an amount
equal to the net proceeds actually received by such seller from the sale of
Registrable Shares effected pursuant to such registration.
The indemnification required by this Section 6 will be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses
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incurred, subject to prompt refund in the event any such payments are determined
not to have been due and owing hereunder.
Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to in the preceding
paragraphs of this Section, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action (it being understood that no delay in
delivering or failure to deliver such notice shall relieve the indemnifying
persons from any liability or obligation hereunder unless (and then solely to
the extent that) the indemnifying person is prejudiced by such delay and/or
failure). In case any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof;
provided, however, that if any indemnified party shall have reasonably concluded
that there may be one or more legal or equitable defenses available to such
indemnified party which are additional to or conflict with those available to
the indemnifying party, or that such claim or litigation involves or could have
an effect upon matters beyond the scope of the indemnity agreement provided in
this Section, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section.
The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and will survive the transfer of securities.
If the indemnification provided for in this Section 6 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, claim, damage, liability or action referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage or
liability as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the sellers of Registrable Shares agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
by pro rata allocation or by any other
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method of allocation which did not take into account the equitable
considerations referred to herein. The amount paid or payable to an indemnified
party as a result of the losses, claims, damages, liabilities or expenses
referred to above shall be deemed to include, subject to the limitation set
forth in the fourth paragraph of this Section 6, any legal or other expenses
reasonably incurred in connection with investigating or defending the same.
Notwithstanding the foregoing, in no event shall the amount contributed by a
seller of Registrable Shares exceed the aggregate net offering proceeds received
by such seller from the sale of its Registrable Shares.
SECTION 7. Underwriting Agreement.
Notwithstanding the provisions of Sections 5 and 6, to the
extent that the Company and the holders selling Registrable Shares in a proposed
registration shall enter into an underwriting or similar agreement, which
agreement contains provisions covering one or more issues addressed in such
Sections, the provisions contained in such Sections addressing such issue or
issues shall be superseded with respect to such registration by such other
agreement.
SECTION 8. Information by Stockholder.
Each Stockholder selling Registrable Shares in a proposed
registration shall furnish to the Company such written information regarding
such Stockholder and the distribution proposed by such Stockholder as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
SECTION 9. Exchange Act Compliance.
From and after the date that a registration statement filed by
the Company pursuant to the Securities Act relating to any class of the
Company's securities shall have become effective, the Company shall comply with
all of the reporting requirements of the Exchange Act and with all other public
information reporting requirements of the Commission which are conditions to the
availability of Rule 144 for the sale of the Common Stock. The Company shall
cooperate with each Stockholder in supplying such information as may be
necessary for such Stockholder to complete and file any information reporting
forms presently or hereafter required by the Commission as a condition to the
availability of Rule 144.
SECTION 10. No Conflict of Rights.
The Company represents and warrants to the Stockholders that
the registration rights granted to the Stockholders hereby do not conflict with
any other registration rights granted by the Company. The Company shall not,
after the date hereof, grant any registration rights which conflict with the
registration rights granted hereby.
SECTION 11. Restriction on Transfer.
The Restricted Shares shall not be transferable except upon
the conditions specified in the Securities Purchase Agreement.
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SECTION 12. Termination.
This Agreement shall terminate and be of no further force or
effect on the date on which there remains no Restricted Shares outstanding.
SECTION 13. Severability.
Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, and such invalid, void or
otherwise unenforceable provisions shall be null and void. It is the intent of
the parties, however, that any invalid, void or otherwise unenforceable
provisions be automatically replaced by other provisions which are as similar as
possible in terms to such invalid, void or otherwise unenforceable provisions
but are valid and enforceable to the fullest extent permitted by law.
SECTION 14. Entire Agreement.
This Agreement, together with the Securities Purchase
Agreement, contains the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior arrangements or understandings
with respect hereto.
SECTION 15. Successors and Assigns.
This Agreement shall bind and inure to the benefit of the
Company and the Stockholders and their respective successors and permitted
assigns; provided, however, that each such person or entity shall, as a
condition to the effectiveness of such assignment, be required to execute a
counterpart to this Agreement whereupon such person or entity shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement with respect to such Restricted Shares.
SECTION 16. Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart. The failure of any
Stockholder to execute this Agreement does not make it invalid as against any
other Stockholder.
SECTION 17. Remedies.
(a) Each Stockholder shall have all rights and remedies
reserved for such Stockholder pursuant to this Agreement and the Articles of
Incorporation and the By-laws of the Company and all rights and remedies which
such Stockholder has been granted at any time under any other agreement or
contract and all of the rights which such holder has under any law or
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equity. Any person having any rights under any provision of this Agreement will
be entitled to enforce such rights specifically, to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other rights
granted by law or equity.
(b) The parties hereto agree that if any parties seek to
resolve any dispute arising under this Agreement pursuant to a legal proceeding,
the prevailing parties to such proceeding shall be entitled to receive
reasonable fees and expenses (including reasonable attorneys' fees and expenses)
incurred in connection with such proceedings.
(c) It is acknowledged that it will be impossible to measure
in money the damages that would be suffered if the parties fail to comply with
any of the obligations herein imposed on them and that in the event of any such
failure, an aggrieved person will be irreparably damaged and will not have an
adequate remedy at law. Any such person shall, therefore, be entitled to
injunctive relief, including specific performance, to enforce such obligations,
and if any action should be brought in equity to enforce any of the provisions
of this Agreement, none of the parties hereto shall raise the defense that there
is an adequate remedy at law.
SECTION 18. Notices.
All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument and shall be deemed to have been duly given when delivered in
person, by telecopy, by nationally-recognized overnight courier, or by first
class registered or certified mail, postage prepaid, addressed to such party at
the address set forth below or such other address as may hereafter be designated
in writing by the addressee to the addressor:
(i) if to the Company, to:
LPA Holding Corp.
14 Corporate Woods
8717 West 110th Street, Suite 300
Overland Park, KS 66210
Phone: (913) 345-1250
Fax: (913) 345-9601
Attention: Chief Executive Officer
with copies to:
O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza
New York, New York 10112
Phone: (212) 408-2400
Fax: (212) 408-2420
Attention: John J. Suydam
(ii) if to the Investor, to:
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LPA Investment LLC
c/o Chase Capital Partners
380 Madison Avenue, 12th Floor
New York, N.Y. 10017
Phone:
Fax: (212) 622-3101
Attention: Stephen Murray and Richard Waters
with copies to:
O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza
New York, New York 10112
Phone: (212) 408-2400
Fax: (212) 408-2420
Attention: John J. Suydam
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next business day and (c) in the case of mailing, on
the third business day following such mailing if sent by certified mail, return
receipt requested.
SECTION 19. Governing Law; Jurisdiction; Venue; Process.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed in the State of Delaware and shall be construed without
regard to (i) any choice of law or conflict of law provision or rule (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware and
(ii) any presumption or other rule requiring the construction of an agreement
against the party causing it to be drafted. Any legal action in a proceeding
brought in accordance with this Section shall be brought in the courts of the
State of Delaware or of the United States District Court for the Southern
District of New York, and by execution and delivery of this Agreement, the
parties hereby accept for themselves and in respect of their property, generally
and unconditionally, the exclusive jurisdiction of the aforesaid courts. The
parties hereby irrevocably waive any objection which they may now or hereafter
have to laying of venue of any actions or proceedings arising out of or in
connection with this Agreement brought in the courts referred to above and
hereby further irrevocably waive and agree, not to plead or claim in any such
court that any such action or proceeding has been brought in an inconvenient
forum. The parties further agree that the mailing by certified or registered
mail, return receipt requested, of any process required by any such court shall
constitute valid and lawful service of process against them, without necessity
for service by any other means provided by statute or rule of court.
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SECTION 20. Further Assurances.
Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the provisions of this
Agreement and the consummation of the transactions contemplated hereby.
SECTION 21. Modifications; Amendments; Waivers.
The terms and provisions of this Agreement may not be
modified, amended or waived, except pursuant to a writing signed by the Company
and the Requisite Stockholders.
SECTION 22. Headings.
The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be a
part of this Agreement.
SECTION 23. Waiver.
No course of dealing between the Company and the Stockholders
(or any of them) or any delay in exercising any rights hereunder will operate as
a waiver of any rights of any party to this Agreement. The failure of any party
to enforce any of the provisions of this Agreement will in no way be construed
as a waiver of such provisions and will not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
SECTION 24. Mutual Waiver of Jury Trial.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS
AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement on the date first written above.
LPA HOLDING CORP.
By:
--------------------------------------
Name:
Title:
LPA INVESTMENT LLC
By:
--------------------------------------
Name:
Title:
Schedule I
Investor Shares of
- -------- Preferred Stock
---------------
LPA Investment LLC 30,000
c/o Chase Capital Partners
380 Madison Avenue, 12th Floor
New York, N.Y. 10017
Attention: Stephen Murray and
Richard D. Waters, Jr.
Fax: (212) 622-3101