AMENDED STOCKHOLDERS' AGREEMENT, dated as of January 29, 1997 (this
"Agreement"), by and among Haynes Holdings, Inc., a Delaware corporation
(including its successors, the "Issuer"), the investors listed on the
signature pages hereof and all other persons that become parties to this
Agreement pursuant to the terms and provisions contained herein.
W I T N E S S E T H
WHEREAS, the Issuer owns all of the outstanding capital stock of
Haynes International, Inc., a Delaware corporation ("Haynes");
WHEREAS, the Issuer and certain of the Investors are parties to
a Stockholders' Agreement, dated as of August 31, 1989 (as heretofore amended,
the "Original Stockholders Agreement") and to a certain Stock Subscription
Agreement, dated as August 31, 1989 (as heretofore amended, the "Subscription
Agreement");
WHEREAS, the Blackstone Investors (as defined below) and the Issuer
have entered into a Stock Purchase Agreement, dated as of January 24, 1997
(the "Stock Purchase Agreement"), and the MLGA Investors (as defined below)
and the Issuer have entered into a Stock Redemption Agreement, dated as of
January 24, 1997 (the "Stock Redemption Agreement"), which agreements,
collectively with certain other agreements referred to therein, provide for
the recapitalization of the Issuer (the "Recapitalization") through the
repurchase by the Issuer of 79.9% of the outstanding shares of common stock,
par value $.01 per share, of the Issuer (the "Common Stock") and the purchase
by the Blackstone Investors of a like amount of newly-issued shares of Common
Stock;
WHEREAS, it is in the best interests of the Issuer and the Investors
(as defined below) that in connection with the Recapitalization, the Original
Stockholders' Agreement be amended and restated and superseded in its entirety
with this Agreement and that, through the execution and delivery of this
Agreement certain aspects of the relationship between the Issuer and the
Investors be regulated and that certain rights be granted to the Holders (as
defined below) with respect to the Common Stock; and
WHEREAS, this Agreement shall become applicable in accordance with
its terms to any Holder (as defined below), (i) with respect to any Holder
that owns Common Stock or options as of the date of effectiveness of this
Agreement, as of such date, and (ii) with respect to any Holder that acquires
Common Stock or options after such date, as of the first date as of which such
Holder acquires any of the Common Stock or options;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein,
have the following meanings:
"Affiliate" shall have the meaning given to such term in Rule 12b-2
promulgated under the Exchange Act.
"Affiliated Transferee" with respect to any Investor, means any
Person (including any Permitted Transferee) that (1) is (a) an Affiliate of
such Investor, (b) an employee, limited partner, general partner or director
of such Investor, any spouse, sibling or lineal ancestor or descendant of any
such employee, limited partner, general partner or director or (c) any trust
for the benefit of, or any estate of, any such spouse, sibling, ancestor or
descendant and (2) has (a) agreed in writing to be bound and (b) has become
bound by the terms and conditions of this Agreement to the same extent and in
the same manner as the Investor transferring Common Stock to such Person;
provided, however, if such Person is a direct or indirect transferee of one of
the MLGA Investors or the MLGA Partners, the Person need not satisfy the
requirements of this clause (2) to be deemed an "Affiliated Transferee".
"Agreement" means this Amended Stockholders Agreement, as the same
shall be amended, supplemented or otherwise modified from time to time.
"Blackstone Investors" means Blackstone Capital Partners II Merchant
Banking Fund L.P., Blackstone Offshore Capital Partners II Merchant Banking
Fund L.P. and Blackstone Family Investment Partnership, L.P.
"Blackstone Nominees" has the meaning set forth in Section 2.1.
"Blackstone Price" means $10.15 per share of Common Stock.
"Board of Directors" means the Board of Directors of the Issuer.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in the City of New York are authorized by law to
close.
"Commission" means the Securities and Exchange Commission and any
successor commission or agency having similar powers.
"Common Stock" has the meaning set forth in the recitals and shall
include shares of Common Stock (i) issuable upon exercise of options held by
any Holder on the date hereof or (ii) to the extent this Agreement is made
applicable to such shares in accordance with the provisions of Section 6.10
hereof, issuable upon exercise of any options granted by the Issuer after the
date hereof.
"Disinterested Director" shall mean any director of the Issuer that
(i) is not an employee or Affiliate of any Blackstone Investor or any
Affiliate thereof, (ii) is not an employee of the Issuer or any subsidiary of
the Issuer and (iii) does not have any material direct or indirect pecuniary
interest in the applicable transaction or series of related transactions.
"Duly Endorsed" means duly endorsed in blank by the Person or
Persons in whose name a stock certificate is registered or accompanied by a
duly executed stock assignment separate from the certificate with the
signature(s) thereon guaranteed by a commercial bank or trust company or a
member of a national securities exchange or of the NASD.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Haynes" has the meaning set forth in the recitals to this
Agreement.
"Holders" means the Investors and their respective Private
Transferees who own shares of Common Stock or options to acquire Common Stock.
"Initial Closing" shall mean the consummation of the purchase of
shares of Common Stock by the Blackstone Investors pursuant to the Stock
Purchase Agreement.
"Initial Public Offering" means the first Public Offering of shares
of Common Stock after the date hereof pursuant to a registration statement
filed under the Securities Act.
"Investors" means the collective reference to the Blackstone
Investors, the MLGA Investors, the Management Investors and the Other
Investors and each Person who becomes a Management Investor or Other Investor
pursuant to the provisions of this Agreement (including Section 6.10 hereof),
but the term shall not include any Private Transferees (other than Affiliated
Transferees who are required to become parties to this Agreement and Permitted
Transferees).
"Management Investors" means the Management Investors listed as such
on the signature pages hereof, each Person that becomes a Management Investor
pursuant to Section 6.10, each Permitted Transferee of any Management Investor
and each Affiliated Transferee of any Management Investor.
"Minimum Price" shall mean, as of any date of determination
commencing with the first Business Day following the 24th full calendar month
after the Subsequent Closing Date, a premium over the Blackstone Price,
compounded annually during the period from the Subsequent Closing Date to such
date of determination, equal to the percentage premium indicated with respect
to such date of determination under the column designated "Applicable Premium"
below:
Date of Determination: Applicable Premium:
During the 25th calendar month
following the Initial Closing Date 28.5%
During the 26th calendar month
following the Initial Closing Date 27.1%
During the 27th calendar month
following the Initial Closing Date 25.9%
During the 28th calendar month
following the Initial Closing Date 24.7%
During the 29th calendar month
following the Initial Closing Date 23.7%
During the 30th calendar month
following the Initial Closing Date 22.8%
During or after the 31st calendar month
following the Initial Closing Date 22.0%
"MLGA Investors" means MLGA Fund II, L.P. and MLGAL Partners, L.P.
"MLGA Nominee" has the meaning set forth in Section 2.1(a)(i).
"MLGA Partners" means any partner (current or former) of either of
the MLGA Investors and the following individuals: David J. Githens, John P.
Githens, Paul M. Githens, Suzanne M. Githens, Thomas F. Githens, Jr., William
E. Githens, Hedy Matteson, Anne H. Milton, Nancy S. Milton, Robert C. Milton,
III, and Diane Sexton.
"NASD" means the National Association of Securities Dealers, Inc.
"Original Stockholders' Agreement" has the meaning set forth in the
recitals to this Agreement.
"Other Investors" means the persons designated as "Other Investors"
on the signature pages hereof.
"Permitted Transferee" means any Person who, in connection with any
sale, assignment, transfer, participation in, pledge, transfer or other
disposition of Common Stock to such Person by a Management Investor, (i) has
agreed in writing to be bound and (ii) has become bound by the terms and
conditions of this Agreement to the same extent and in the same manner as the
Management Investor transferring Common Stock to such Person.
"Person" means an individual, partnership, corporation, trust, joint
stock company, association, joint venture, or any other entity or
organization, including a government or political subdivision or any agency or
instrumentality thereof.
"Private Transferee" means any Person (including any Affiliated
Transferee or Permitted Transferee) who acquires any Common Stock upon any
sale, assignment, transfer, distribution, participation in, pledge, transfer
or other disposition from a Holder or a direct or indirect Private Transferee
thereof, other than (i) pursuant to a Public Offering or (ii) pursuant to Rule
144 under the Securities Act after the Initial Public Offering. The term
"Private Transferees" shall mean any combination of such Private Transferees
and, with respect to any Holder, "Private Transferees" shall mean the
specified combination of such Private Transferees.
"Public Offering" means any firm commitment underwritten public
offering of equity securities (or securities convertible into equity
securities) of the Issuer pursuant to an effective registration statement
under the Securities Act other than pursuant to a registration statement on
Form S-4 or Form S-8 or any successor or similar form.
"Registrable Shares" means the shares of Common Stock of the Issuer
(a) held by the Investors immediately after the Subsequent Closing on the
Subsequent Closing Date or (b) acquired by any Private Transferee upon
transfer of any of the shares referred to in clause (a); provided that such
shares shall cease to be Registrable Shares if and when (i) a registration
statement with respect to the disposition of such shares shall have become
effective under the Securities Act and such shares shall have been disposed of
pursuant to such effective registration statement, (ii) such shares shall have
been sold under circumstances in which all of the applicable conditions of
Rule 144 (or any similar provisions then in force) under the Securities Act
are met, (iii) such shares shall have been otherwise transferred, new
certificates not bearing restrictive legends shall have been delivered by the
Issuer in lieu thereof and further disposition thereof shall not require
registration or qualification of them under the Securities Act or any state
securities or Blue Sky laws, (iv) such shares may be sold pursuant to Rule
144(k) under the Securities Act or (v) such shares shall have ceased to be
outstanding.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsequent Closing" means the Subsequent Closing (as defined in the
Stock Redemption Agreement).
"Subsequent Closing Date" means the Subsequent Closing Date (as
defined in the Stock Redemption Agreement).
"Stock Purchase Agreement" has the meaning set forth in the recitals
to this Agreement.
"Stock Redemption Agreement" has the meaning set forth in the
recitals to this Agreement.
"Tag-along Transfer Notice Date" means the effective date of the
Tag-along Transfer Notice.
ARTICLE II
CORPORATE GOVERNANCE AND
CERTAIN VOTING AGREEMENTS
SECTION 2.1. Board of Directors of the Issuer. (a) The Blackstone
Investors and MLGA Investors agree as follows:
(i) Commencing after the Initial Closing and for so long thereafter
as the MLGA Investors own (or either of them owns) at least 25% of the number
of shares of Common Stock owned by the MLGA Investors immediately following
the Subsequent Closing (as such number shall be adjusted to account for stock
splits, dividends, subdivisions, combinations, reclassifications or similar
transactions effected by the Issuer after the Subsequent Closing Date), the
MLGA Investors (or either of them) shall be entitled, but not required, to
designate one nominee for election to the Board of Directors (such nominee,
together with any replacement pursuant to subparagraph (d) below, being
referred to herein as the "MLGA Nominee"); and
(ii) Commencing after the Initial Closing, the Blackstone Investors
shall be entitled to designate such number of nominees for election to the
Board of Directors as the Blackstone Investors shall specify from time to time
(such nominees, together with any replacements pursuant to subparagraph (d)
below and any additional directors appointed pursuant to subparagraph (f)
below, being referred to herein as the "Blackstone Nominees").
As soon as practicable after the Initial Closing, the Blackstone Investors and
the MLGA Investors shall vote at a meeting or by written consent all of the
shares of Common Stock owned by them so that the Blackstone Nominees and the
MLGA Nominee shall be elected to the Board of Directors. The Blackstone
Investors and the MLGA Investors shall vote all of the shares of Common Stock
owned by them, at any subsequent regular or special meeting of the
shareholders of the Issuer at which action is to be taken with respect to the
election of directors, or in any written consent in lieu of such a meeting of
shareholders, in favor of the election of the Blackstone Nominees and the MLGA
Nominee and shall take all other actions necessary to ensure the continued
election to the Board of Directors of such nominees and shall not take any
actions which are inconsistent with the intent and purpose of the foregoing.
(b) The Blackstone Investors and the MLGA Investors shall take all
actions necessary to cause each of the members of the Board of Directors so
elected, acting as the sole shareholder of Haynes, to take all action
necessary such that the board of directors of Haynes shall at all times be
constituted of the same individuals as the Board of Directors.
(c) Neither this Agreement nor any provisions hereof nor any action
taken or omitted to be taken hereunder shall be deemed to create or confer on
any particular member of the Board of Directors any right to be retained in
such capacity with the Issuer or Haynes, or any of their respective
Affiliates.
(d) Each Blackstone Investor and MLGA Investor hereby agrees to use
its best efforts to call, or cause the appropriate officers and directors of
the Issuer to call, a special meeting of shareholders of the Issuer and vote
all of the shares of Common Stock owned or held of record by it for, or to
take all actions by written consent in lieu of any such meeting necessary to
cause, the removal (with or without cause) of any Blackstone Nominee or MLGA
Nominee if the Blackstone Investors or the MLGA Investors, as the case may be,
request his or her removal for any reason. The Blackstone Investors and the
MLGA Investors shall have the right to designate a new nominee if a Blackstone
Nominee or a MLGA Nominee shall vacate his or her directorship for any reason
(including any removal from such directorship as provided above) and each
Blackstone Investor and each MLGA Investor hereby agrees to take such actions
as may be necessary to cause such vacancy to be filled by such new Blackstone
Nominee or MLGA Nominee.
ARTICLE III
RIGHTS AND OBLIGATIONS WITH
RESPECT TO TRANSFER
SECTION 3.1. General Restrictions. (a) Each Holder agrees that it
will not, except as required by law, directly or indirectly, offer, sell,
assign, transfer, grant a participation in, pledge or otherwise dispose of any
shares of Common Stock, except those dispositions that are made in compliance
with the Securities Act, all applicable state and foreign securities laws and
this Agreement (and, in the case of a transfer not pursuant to a Public
Offering, upon delivery to the Issuer of such opinions or certificates as the
Issuer shall reasonably request to establish that such disposition is not
subject to the registration requirements of the Securities Act or any other
applicable securities laws).
(b) No Investor or Affiliated Transferee of any Investor (other
than Affiliated Transferees of the MLGA Investors or the MLGA Partners) shall
grant any proxy or enter into or agree to be bound by any voting trust with
respect to the Common Stock, nor shall any Investor or Affiliated Transferee
of any Investor (other than Affiliated Transferees of the MLGA Investors or
the MLGA Partners) enter into any agreement or arrangement of any kind with
any Person with respect to the Common Stock, in either case, inconsistent with
the provisions of this Agreement, including, but not limited to, agreements or
arrangements with respect to the acquisition, disposition or voting of shares
of Common Stock, or act, for any reason, as a member of a group or in concert
with any other Persons in connection with the acquisition, disposition or
voting of shares of Common Stock in any manner which is inconsistent with the
provisions of this Agreement.
(c) No Investor (other than the MLGA Investors or the MLGA Partners)
shall transfer any shares of Common Stock during the period from the date of
the initial effectiveness of this Agreement until the Subsequent Closing Date,
except as expressly contemplated by the Stock Purchase Agreement, the Stock
Redemption Agreement and the other agreements and transactions referred to in
such agreements.
No Investor (other than a MLGA Investor or MLGA Partner) shall,
directly or indirectly, sell, assign, transfer, grant a participation in,
pledge or otherwise dispose of shares of Common Stock to any Person who would
constitute an Affiliated Transferee if such Person agreed in writing to be
bound by the terms and conditions of this Agreement to the same extent and in
the same manner as the Investor transferring Common Stock to such Person,
unless such Person does agree in writing to be bound by the terms and
conditions of this Agreement to the same extent and in the same manner as the
Investor transferring Common Stock to such Person.
SECTION 3.2. Legends. (a) Each certificate evidencing outstanding
shares of Common Stock issued to any Holder shall bear a legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE OR FOREIGN
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, OR TRANSFERRED EXCEPT IN
COMPLIANCE THEREWITH. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO A STOCKHOLDERS' AGREEMENT DATED AS OF JANUARY 29, 1997, COPIES OF
WHICH WILL BE FURNISHED BY HAYNES HOLDINGS, INC. OR ANY SUCCESSOR THERETO UPON
REQUEST AND WITHOUT CHARGE.
(b) If any shares of Common Stock shall cease to be Registrable
Shares, the Issuer shall, upon the written request of the Holder thereof,
issue to such Holder a new certificate evidencing such shares without the
legend required by Section 3.2(a) hereof endorsed thereon. If any shares of
Common Stock are transferred to any Private Transferee (other than an
Affiliated Transferee who is required to agree in writing to be bound by this
Agreement or a Permitted Transferee), then upon the request of the Private
Transferee the second sentence of the legend required by Section 3.2(a) shall
be removed from the certificate evidencing the applicable Common Stock.
SECTION 3.3. Tag-along Rights. (a) If one or more of the
Blackstone Investors or any Affiliated Transferee of a Blackstone Investor
(other than a Person who is an Affiliated Transferee of a Blackstone Investor
solely as a result of being a limited partner of a Blackstone Investor or a
limited partner of an Affiliated Transferee of a Blackstone Investor)
(collectively, the "Tag-along Offering Investors") proposes to sell any of its
shares of Common Stock to any Person (a "Prospective Tag-along Purchaser")
pursuant to a bona fide offer or offers to purchase or otherwise acquire, in
one transaction or any series of related transactions (a "Tag-along Transfer
Offer"), such Tag-along Offering Investors shall then cause the Tag-along
Transfer Offer to be reduced to writing and shall provide written notice (the
"Tag-along Transfer Notice") of such Tag-along Transfer Offer to each of the
other Holders (the "Tag-along Transfer Offerees"), in the manner set forth in
this Section 3.3. The Tag-along Transfer Notice shall identify the
Prospective Tag-along Purchaser, the Tag-along Ratio (as defined below), the
price contained in the Tag-along Transfer Offer and all the other material
terms and conditions of the Tag-along Transfer Offer. The Tag-along Transfer
Offerees shall have the right and option, exercisable as set forth below, to
accept the Tag-along Transfer Offer for up to such number of shares of Common
Stock as is determined in accordance with the provisions of Section 3.3(b).
Each Tag-along Transfer Offeree that desires to exercise such option to accept
the Tag-along Transfer Offer shall provide the Tag-along Offering Investors
with written revocable notice (each a "Tag-along Notice" and collectively, the
"Tag-along Notices") (specifying the number of shares of Common Stock as to
which such Tag-along Transfer Offeree is accepting the Tag-along Transfer
Offer) within 15 Business Days after the Tag-along Transfer Notice Date, and
shall simultaneously provide a copy of such Tag-along Transfer Notice to the
Issuer, and the Issuer shall forward a copy of each such Tag-along Notice to
the other Tag-along Transfer Offerees. Such Tag-along Notice may be withdrawn
or modified at any time until the expiration of 20 Business Days after the
Tag-along Transfer Notice Date (the "Tag-along Notice Period"). At the
expiration of the Tag-along Notice Period, the most recent notice given by a
Tag-along Transfer Offeree shall become irrevocable and binding, and shall
constitute an irrevocable acceptance of the Tag-along Transfer Offer by the
Tag-along Transfer Offeree for the Common Stock specified therein. As soon as
practicable after the expiration of the Tag- along Notice Period, the
Tag-along Offering Investors shall notify the Issuer and each accepting
Tag-along Transfer Offeree of the number of shares of Tag-along Transfer Stock
such Tag- along Transfer Offeree is obligated to sell or otherwise dispose of
pursuant to the Tag-along Transfer Offer and Section 3.3(b). The Tag-along
Offering Investors shall notify the Issuer and each accepting Tag-along
Transfer Offeree of the proposed date of any sale (the "Sale Date") pursuant
to this Section 3.3 no less than ten (10) days prior to the Sale Date and each
accepting Tag-along Transfer Offeree shall, not less than five (5) days prior
to the Sale Date, deliver to the Tag-along Offering Investors the Duly
Endorsed certificate or certificates representing the shares of Common Stock
to be sold or otherwise disposed of pursuant to such offer by such Tag-along
Transfer Offeree (or, if delivery of such certificates is not permitted by
applicable law, regulation or previously adopted non-discretionary policy,
copies of such certificates together with an unconditional agreement to
deliver such certificates on the Sale Date against delivery to the Tag- Along
Transfer Offeree of the consideration therefor), together with a limited
power-of-attorney authorizing the Tag-along Offering Investors to sell or
otherwise dispose of such shares of Common Stock pursuant to the terms of the
Tag-along Transfer Offer and all other documents required to be executed in
connection with the Tag-along Transfer Offer and shall simultaneously provide
a copy of such share certificates (or such agreement to deliver such shares
certificates) and such other required documents to the Issuer. In the event
that an accepting Tag-along Transfer Offeree shall fail to deliver such
certificates (or such agreement) and all other such required documents to the
Tag-along Offering Investors and the Issuer by such fifth day prior to the
Sale Date, after one day's notice of such failure (or in the event that such
Tag-Along Transfer Offeree shall fail to comply with its agreement to deliver
certificates on the Sale Date), the Tag-along Offering Investors shall be
entitled on the Sale Date to sell pursuant to such Tag- along Transfer Offer,
in addition to any other shares of Common Stock they are entitled to sell
pursuant to this Section 3.3, the number of shares of Common Stock such
failing Tag-along Transfer Offeree was otherwise entitled to sell hereunder.
The sale by the Tag-along Offering Investors to the Prospective Tag-along
Purchaser must be consummated by the Tag-along Offering Investors within 60
Business Days from the termination of the Tag-along Notice Period at a price
not higher than, and on terms not more favorable in any material respect than,
the terms contained in the Tag-along Transfer Notice. If the consideration
payable for the shares of Common Stock consists in part or in whole of
consideration other than cash, any increase in the cash component of such
Tag-along Transfer Offer shall constitute terms that are ipso facto "more
favorable" and thus require the provisions of this Section 3.3 to again apply
to such increased offer. If, at the end of such 60 Business Day period, the
Tag-along Offering Investors have not consummated the sale or other
disposition of the shares of Common Stock to the Prospective Tag-along
Purchasers all the restrictions on sale or other disposition contained in this
Agreement with respect to the shares of Common Stock owned by the Tag-along
Offering Investor shall again be in effect.
(b) (i) Each Tag-along Transfer Offeree shall have the right to
sell, pursuant to the Tag-along Transfer Offer, a number of shares of Common
Stock less than or equal to the product of the total number of shares offered
to be sold by the Tag-along Offering Investors or offered to be purchased by
the Prospective Tag-along Purchaser as set forth in such Tag-along Transfer
Offer multiplied by a fraction (the "Tag-along Ratio"), the numerator of which
shall be the total number of shares of Common Stock owned by such Tag-along
Transfer Offeree (or immediately acquirable upon exercise of outstanding
options issued to the Tag-along Transfer Offeree) and the denominator of which
shall be the sum of the total number of shares of Common Stock owned by all
Holders (or immediately acquirable upon exercise of outstanding options issued
to all Holders).
(ii) If at the termination of the Tag-along Notice Period
any Tag-along Transfer Offeree shall not have accepted the Tag-along Transfer
Offer, such Tag-along Transfer Offeree will be deemed to have waived any and
all of its rights under this Section 3.3 with respect to the sale or other
disposition or any of its Common Stock pursuant to such (but no other)
Tag-along Transfer Offer.
(iii) The Issuer shall fully cooperate with any Holder
who desires to exercise options held by such Holder in order to sell shares of
Common Stock pursuant to the Tag-along Transfer Notice, including, but not
limited to, promptly delivering certificates for the shares of Common Stock so
purchased to the Holder.
(c) Promptly after the consummation of the sale or other
disposition of the shares of Common Stock pursuant to the Tag-along Transfer
Notice the Tag-along Offering Investors shall remit to each of the Tag-along
Transfer Offerees the relevant consideration for the shares of Common Stock of
such Tag-along Transfer Offeree sold or otherwise disposed of pursuant
thereto, and shall furnish such other evidence of the completion and time of
completion of such sale or other disposition and the terms thereof as may be
reasonably requested by the Tag-along Transfer Offerees.
(d) Each Tag-along Transfer Offeree shall be entitled to sell its
shares of Common Stock pursuant to the Tag-along Transfer Offer at the same
price per share of Common Stock and upon the same financial terms and
conditions (including without limitation time of payment and form of
consideration) as to be paid and given to the Tag-along Offering Investors,
provided that no Tag-along Transfer Offeree shall be required to make to the
Prospective Tag-along Purchaser any representations or warranties in
connection with the proposed transfer of their shares of Common Stock (except
for several (and not joint) representations with respect to the Tag-along
Transfer Offeree's ownership and authority to sell, free of liens, claims and
encumbrances, the Common Stock to be sold by it), and provided further that no
Tag- along Transfer Offeree shall have any indemnification obligation, except
with respect to a breach of its representations and warranties.
(e) No obligation to make a Tag-along Transfer Offer shall result
from, and no Tag-along Transfer Offeree shall have any right or option to
demand any Tag-along Transfer Offer pursuant to this Section 3.3 arising out
of, any proposed sale of Common Stock in connection with any sale by a
Blackstone Investor or an Affiliated Transferee of a Blackstone Investor (i)
to an Affiliated Transferee of such Persons, (ii) pursuant to a Public
Offering or (iii) in compliance with Rule 144 under the Securities Act
subsequent to the Initial Public Offering.
(f) Notwithstanding anything contained in this Section 3.3, there
shall be no liability on the part of the Tag-along Offering Investors to any
Tag-along Transfer Offeree if the sale of Common Stock is not consummated for
whatever reason; providednone of such Tag-along Offering Investors sells any
Common Stock to any other Prospective Tag-along Purchaser without complying
again with this Section 3.3. Whether to effect a sale of Common Stock
pursuant to this Section 3.3 is in the sole and absolute discretion of the
Tag-along Offering Investors; provided, however, if any sale is effected by
such Tag-along Offering Investor, such sale shall be effected pursuant to this
Section 3.3.
SECTION 3.4. Drag-Along Rights. (a) Except as provided in Section
3.4(e), for so long as the Blackstone Investors collectively own at least a
majority of the shares of Common Stock of the Issuer on a fully-diluted basis,
if the Blackstone Investors propose to sell to any Person (the "Compelled Sale
Purchaser") all Common Stock held by all Blackstone Investors (the "Compelled
Sale Transfer Offer"), then the Blackstone Investors shall have the right,
exercisable as set forth below, to require each and every one (but not less
than every one) of the Investors, and all Affiliated Transferees of all of the
Investors (other than Affiliated Transferees of the MLGA Investors and the
MLGA Partners) (the "Drag-along Persons"), to sell all, but not less than all,
of the Common Stock then held by them to the Compelled Sale Purchaser, for the
same consideration per share and otherwise on the same terms and conditions
upon which the Blackstone Investors sell their Common Stock.
(b) The Blackstone Investors shall cause the Compelled Sale
Transfer Offer to be reduced to writing and shall provide a written notice
(the "Compelled Sale Transfer Notice") of such Compelled Sale Transfer Offer
to the Issuer and the Drag-along Persons. The Compelled Sale Transfer Notice
shall contain written notice of the exercise of the Blackstone Investors'
rights pursuant to Section 3.4(a) hereof setting forth the consideration per
share to be paid by the Compelled Sale Purchaser and the other terms and
conditions of the Compelled Sale Transfer Offer.
(c) Within ten (10) Business Days of the Compelled Sale Transfer
Notice, each of the Drag-Along Persons shall deliver to a representative of
the Blackstone Investors designated in the Compelled Sale Transfer Notice,
Duly Endorsed certificates representing the shares of Common Stock held by
such Drag-along Person (or, if delivery of such certificates is not permitted
by applicable law, regulation or previously adopted non-discretionary policy,
copies of such certificates and an unconditional agreement to deliver such
certificates at the closing for such Compelled Sale Transfer Offer against
delivery to such Drag-along Person of the consideration therefor), together
with all other documents, required to be executed in connection with such
Compelled Sale Transfer Offer. In the event that a Drag-along Person should
fail to deliver such certificates to the Blackstone Investors as required by
this Section 3.4, the Issuer shall cause the books and records of the Issuer
to show that such shares of Common Stock are bound by the provisions of this
Section 3.4 and that such shares shall be transferred only to the Compelled
Sale Purchaser upon surrender for transfer by such Drag-along Person.
(d) If, within 90 days after the Compelled Sale Transfer Notice, the
Blackstone Investors have not completed the sale of all the Common Stock to
the Compelled Sale Purchaser, the Blackstone Investors shall return to each of
the Drag-along Persons all certificates representing Common Stock and other
documents and instruments that such Drag-along Persons delivered in connection
with the sale pursuant hereto, and the provisions of this Section 3.4 with
respect to the shares of Common Stock owned by the Blackstone Investors prior
to giving such Compelled Sale Transfer Notice shall again be in effect.
(e) The provisions of this Section 3.4 shall not apply to any
proposed sale by the Blackstone Investors of all of their shares of Common
Stock (i) to the Issuer, (ii) to an Affiliated Transferee of any of the
Blackstone Investors or (iii) pursuant to a Public Offering.
(f) Promptly after the consummation of the sale of the shares of
Common Stock of the Blackstone Investors and the Drag- along Persons pursuant
to this Section 3.4, the Blackstone Investors shall give notice thereof to the
Drag-along Persons and shall remit to each of the Drag-along Persons the
relevant consideration for the shares of Common Stock of such Drag-along
Persons sold pursuant thereto, and shall furnish such other evidence of the
completion and time of completion of such sale and the terms thereof as may be
reasonably requested by such Drag-along Persons.
SECTION 3.5. Consent to Certain Transfers. Without the prior
written consent of the Blackstone Investors (which consent shall not be
unreasonably withheld), the MLGA Investors shall not sell, assign, transfer,
grant a participation in, pledge or otherwise dispose of, in one transaction
or any series of related transactions, to any single purchaser or to any
"group" (as defined under the Exchange Act and the rules and regulations
promulgated thereunder), 25% or more of the number of shares of Common Stock
owned by the MLGA Investors immediately following the Subsequent Closing (as
such number shall be adjusted to account for stock splits, dividends,
subdivisions, combinations, reclassifications or similar transactions effected
by the Issuer after the Subsequent Closing). If the Blackstone Investors do
not respond to a written notice from the MLGA Investors of their intention to
transfer such shares within five (5) Business Days after receiving such
written notice, the Blackstone Investors shall be deemed to have consented to
the transfer. The provisions of this Section 3.5 shall not apply to any sale
or transfer of Common Stock by the MLGA Investors to the Issuer or in
connection with any transfer to the partners of the MLGA Investors upon a
distribution to partners of Common Stock. The provisions of this Section 3.5
shall terminate upon the occurrence of an Initial Public Offering.
SECTION 3.6. Certain Provisions With Respect to Management
Investors. (a) Without limiting the provisions of Section 3.1, each Management
Investor agrees that it will not, except as required by law, directly or
indirectly, offer, sell, assign, transfer, grant a participation in, pledge or
otherwise dispose of any shares of Common Stock, except to a Permitted
Transferee.
(b) If any Management Investor receives or otherwise negotiates a
bona fide offer (a "Transfer Offer") to purchase any of its shares of Common
Stock (the "Transfer Stock"), which such Management Investor wishes to accept,
such Management Investor shall cause the Transfer Offer to be reduced to
writing and shall provide a written notice to the Blackstone Investors. The
Transfer Offer shall also contain an irrevocable offer (the "First Offer") to
sell all such Transfer Stock subject to the Transfer Offer to the Blackstone
Investors at a price equal to the price and upon substantially the same terms
as the terms contained in such Transfer Offer and shall be accompanied by a
true and correct copy of such Transfer Offer (which shall identify the third
party offeror, the Transfer Stock, the price contained in such Transfer Offer
and all the other terms and conditions of the Transfer Offer). The Blackstone
Investors shall have the irrevocable right and option, exercisable upon
written notice to the Issuer and the Management Investor within 15 days of
their receipt of the Transfer Offer, to accept the First Offer with respect to
all, but not less than all, of the shares of Transfer Stock. The Transfer
Stock to be purchased by the Blackstone Investors upon their exercise of the
First Offer shall be allocated among the Blackstone Investors pro rata or, if
any of the Blackstone Investors elect not to purchase shares of Transfer
Stock, according to any other method of allocation the Blackstone Investors
shall elect in their written notice of exercise to the Issuer and Management
Investor.
(c) The closing of the purchase of the Transfer Stock by the
Blackstone Investors shall take place at the principal office of the Issuer on
the tenth Business Day after receipt by the Issuer of the written election by
the Blackstone Investors to exercise the First Offer, or upon such earlier
date as may be agreed by the Management Investor and the Blackstone Investors.
At such closing, the Blackstone Investors purchasing Transfer Stock shall
deliver a certified check or wire transfer of immediately available funds
against delivery by the Management Investor of Duly Endorsed certificates
representing the Transfer Stock.
(d) The provisions of this Section 3.6 shall not apply (a) in
connection with any sale (i) by a Management Investor to the Issuer or an
Affiliated Transferee, (ii) by a Management Investor or Affiliated Transferee
pursuant to a Public Offering or (b) in connection with sales of Common Stock
pursuant to and in compliance with Rule 144 under the Securities Act
subsequent to the Initial Public Offering.
SECTION 3.7. Improper Transfer. Any attempt to sell, assign,
transfer, grant a participation in, pledge or otherwise dispose of any Common
Stock not in compliance with this Agreement shall be null and void and neither
the Issuer nor any transfer agent shall give any effect in the Issuer's stock
records to such attempted sale, assignment, transfer, grant of a participation
in, pledge or other disposition.
ARTICLE IV
REGISTRATION RIGHTS
SECTION 4.1. Registration Upon Request of the MLGA Investors
following an Initial Public Offering. (a) If, at any time after the 180th day
after the consummation of the Initial Public Offering (or such earlier date
after such consummation as the managing underwriter of the Initial Public
Offering shall permit), the Issuer shall receive a written request from either
of the MLGA Investors to register Registrable Shares owned by the MLGA
Investors totalling at least 25% of the number of shares of Common Stock owned
by the MLGA Investors immediately following the Subsequent Closing (as such
number shall be adjusted to account for stock splits, dividends, subdivisions,
combinations, reclassifications or similar transactions effected by the Issuer
after the Subsequent Closing Date), which request shall specify the intended
method of disposition thereof, the Issuer shall promptly give notice of such
request to the other Holders and thereupon shall (i) prepare and file a
registration statement under the Securities Act covering (A) the number of the
Registrable Shares which are the subject of such request, (B) all unissued
shares of Common Stock which the Issuer has elected to register for itself and
(C) all other Registrable Shares which the Holders shall have requested the
Issuer to register pursuant to Section 4.4 hereof and (ii) use its
commercially reasonable best efforts to cause such registration statement to
become effective. The managing underwriter of an offering pursuant to this
subparagraph (a) shall be selected by the MLGA Investors and shall be
reasonably acceptable to the Issuer.
(b) In the event that the MLGA Investors determine for any reason
not to proceed with a registration at any time before the registration
statement has been declared effective by the Commission, and such registration
statement, if theretofore filed with the Commission, is withdrawn with respect
to the Registrable Shares covered thereby, and the MLGA Investors bear their
own expenses and reimburse the Issuer for all out-of-pocket expenses incurred
by it attributable to the attempted registration of such Registrable Shares,
then the MLGA Investors shall not be deemed to have exercised a right to
require the Issuer to register Registrable Shares pursuant to this Section
4.1. If a registration statement filed by the Issuer at the request of the
MLGA Investors pursuant to this Section 4.1 is withdrawn at the initiative of
the Issuer, then the MLGA Investors shall not be deemed to have exercised a
right to require the Issuer to register Registrable Shares pursuant to this
Section 4.1.
(c) If a requested registration pursuant to this Section 4.1
involves an underwritten offering and the managing underwriter advises the
Issuer in writing that, in its opinion, the number of securities requested to
be included in such registration (including securities of the Issuer which are
not Registrable Shares) exceeds the largest number of securities which can be
sold in such offering, the Issuer will include in such registration shares of
Common Stock in the priority listed below, (i) first, the number of
Registrable Shares requested to be registered by the MLGA Investors, pro rata
in accordance with the number of shares so requested to be registered, (ii)
second, the number of Registrable Shares requested to be registered by Holders
other than the MLGA Investors, pro rata in accordance with the number of
shares so requested to be registered and (iii) third, the number of shares
proposed to be sold by the Issuer.
(d) Subject to subparagraph (b) of this Section 4.1, the obligation
of the Issuer under this Section 4.1 shall be limited to one registration
statement. Subject to the election of the MLGA Investors to pay certain
expenses pursuant to Section 4.1(b), the Issuer shall pay the expenses
described in Section 4.6 in connection with any registration statement filed
pursuant to this Section 4.1.
(e) Notwithstanding the foregoing provisions of this Section 4.1, if
the managing underwriter, the Commission, the Securities Act or the form on
which the registration statement is to be filed with respect to a requested
registration would require the conduct of an audit other than the regular
audit conducted by the Issuer at the end of its fiscal year, the filing of the
registration statement requested pursuant to this Section may be delayed until
the completion of such regular audit.
SECTION 4.2. Registration Upon Request of the MLGA Investors prior
to an Initial Public Offering. (a) In the event that the Issuer shall not have
consummated an Initial Public Offering prior to the first Business Day of the
calendar month occurring at least 24 full calendar months after the Subsequent
Closing Date, if, at any time on or after such first Business Day the Issuer
shall receive a written request from either of the MLGA Investors to register
Registrable Shares then owned by the MLGA Investors totalling at least 25% of
the number of shares of Common Stock owned by the MLGA Investors immediately
following the Subsequent Closing (as such number shall be adjusted to account
for stock splits, dividends, subdivisions, combinations, reclassifications or
similar transactions effected by the Issuer after the Subsequent Closing Date)
pursuant to a Public Offering, the Issuer shall (i) promptly select a managing
underwriter for such requested Public Offering (which managing underwriter
shall be reasonably acceptable to the MLGA Investors) and (ii) cause such
managing underwriter to deliver to the Issuer and the MLGA Investors a letter
(the "Underwriter's Letter") stating (A) the prices that the managing
underwriter believes represent, respectively, the highest initial public
offering price and the lowest initial public offering price likely to be
attained in a Public Offering of the Common Stock owned by such MLGA Investors
requested to be so registered pursuant to this Section 4.2(a) if a Public
Offering of such shares were to be consummated on the date of the
Underwriter's Letter pursuant to customary underwriting arrangements and an
effective registration statement (provided that such high price shall not
exceed such low price by more than 15%) or (B) that such managing underwriter
believes that a Public Offering of the shares of Common Stock owned by such
MLGA Investors requested to be so registered pursuant to this Section 4.2(a)
could not be successfully consummated on such date (assuming customary
underwriting arrangements and the availability of an effective registration
statement with respect to such shares).
(b) Notwithstanding the provisions of this Subsection 4.2, the
Issuer shall have no obligation to file a registration statement requested
pursuant to this Section 4.2 unless the following conditions have been
satisfied:
(i) the Underwriter's Letter shall state that the managing
underwriter is confident that the Public Offering referred to in the
Underwriter's Letter could be effected at an initial public offering price per
share within the range of the high and low initial public offering prices set
forth in the Underwriter's Letter; and
(ii) the median of the high and low prices set forth in the
Underwriter's Letter (the "Midpoint Price") shall represent a percentage
premium over the Blackstone Price, compounded annually during the period from
the Subsequent Closing Date to the date of the Underwriter's Letter, equal to
not less than the Minimum Price as of the date of the Underwriter's Letter.
(c) Subject to the provisions of subparagraph (d) below, if the
conditions of subparagraph (b) are satisfied, and if the MLGA Investors notify
the Issuer and the Blackstone Investors in writing within five (5) Business
Days of their receipt of the Underwriter's Letter of their election to proceed
with the registration requested by the MLGA Investors as set forth above, the
Issuer shall give notice of such request to the other Holders and thereupon
shall (i) prepare and file a registration statement under the Securities Act
covering (A) the number of the Registrable Shares which are the subject of
such request, (B) all unissued shares of Common Stock which the Issuer has
elected to register for itself and (C) all other Registrable Shares which the
Holders shall have requested the Issuer to register pursuant to Section 4.4
hereof and (ii) subject to the provisions of subparagraph (e) below, use its
commercially reasonable best efforts to cause such registration statement to
become effective.
(d) Upon satisfaction of the requirements set forth in subparagraph
(b) above, in lieu of proceeding with the registration provided for in
subparagraph (c), the Blackstone Investors may elect, or if the Blackstone
Investors decline to so elect, the Issuer may elect, by written notice
delivered to the MLGA Investors within five (5) Business Days following
receipt of the notice from the MLGA Investors to proceed with the registration
as provided in subparagraph (c) above, to purchase from the MLGA Investors all
shares of Common Stock which are the subject of their request for registration
at a price equal to the Midpoint Price. Upon the exercise of any such
election to purchase by the Blackstone Investors or the Issuer, as the case
may be, the MLGA Investors and the Blackstone Investors or the Issuer, as the
case may be, shall be obligated to consummate the sale of such shares of
Common Stock to the Blackstone Investors or the Issuer, as the case may be, on
the date designated by the Blackstone Investors or the Issuer, as the case may
be, in the written election to purchase, which date shall be not less than 5
Business Days nor more than 10 Business Days following the date of the
election by the Blackstone Investors. On the date so specified by the
Blackstone Investors or the Issuer, as the case may be, the MLGA Investors
shall deliver to the Blackstone Investors or the Issuer, as the case may be,
against receipt of the purchase price therefor in immediately available funds,
Duly Endorsed certificates representing the shares of Common Stock elected to
be purchased by the Blackstone Investors or the Issuer, as the case may be.
(e) Notwithstanding any provisions of this Section 4.2 to the
contrary, the Issuer shall be entitled to withdraw any registration statement
filed pursuant to this Section 4.2, and the MLGA Investors shall not be
entitled to consummate any Public Offering of Registrable Shares subject to
any registration statement filed pursuant to this Section 4.2, if the initial
public offering price with respect to such Public Offering would be less than
the Minimum Price. If a registration statement is withdrawn or a Public
Offering terminated by the Issuer pursuant to this subparagraph (e), then the
MLGA Investors shall not be deemed to have exercised their right to require
the Issuer to register Registrable Shares pursuant to this Section 4.2.
(f) In the event that the MLGA Investors determine for any reason
not to proceed with a Public Offering pursuant to this Section 4.2 after they
shall have requested the Issuer to proceed with such registration pursuant to
subparagraph (c), then the MLGA Investors shall be deemed to have fully
exercised their right to require the issuer to register Registrable Shares
pursuant to this Section 4.2 and, upon compliance by the Issuer with its
obligations under this Article IV with respect to such Public Offering, the
Issuer shall have no further obligation to the MLGA Investors pursuant to this
Section 4.2; provided, however, that if the MLGA Investors elect not to
proceed with such requested Public Offering pursuant to this Section 4.2
because the managing underwriter shall have notified the MLGA Investors of its
inability to consummate the Public Offering at an initial public offering
price equal to at least the lowest initial public offering price set forth in
the Underwriter's Letter, upon payment by the MLGA Investors of all their
expenses, and upon reimbursement by the MLGA Investors of all out-of-pocket
expenses of the Issuer, incurred in connection with the registration of such
Registrable Shares, then the MLGA Investors shall not be deemed to have
exercised their right to require the Issuer to register Registrable Shares
pursuant to this Section 4.2.
(g) If the managing underwriter advises the Issuer in writing that,
in its opinion, the number of securities (including securities of the Issuer
which are not Registrable Shares) requested to be included in a Public
Offering pursuant to this Section 4.2 exceeds the largest number of securities
which can be sold in such offering, the Issuer will include in such
registration shares of Common Stock in the priority listed below, (i) first,
the number of Registrable Shares requested to be registered by the MLGA
Investors, pro rata in accordance with the number of shares so requested to be
registered, (ii) second, the number of Registrable Shares requested to be
registered by Holders other than the MLGA Investors, pro rata in accordance
with the number of shares so requested to be registered and (iii) third, the
number of shares proposed to be sold by the Issuer.
(h) Subject to subparagraph 4.2(f) above, the obligation of the
Issuer under this Section 4.2 shall be limited to one registration statement.
The MLGA Investors shall not be entitled to request the delivery of an
Underwriter's Letter with respect to a proposed registration of Registrable
Shares pursuant to this Section 4.2 more than one time in any period of twelve
calendar months. The Issuer shall pay the expenses in connection with such
registration statement described in Section 4.6.
(i) Notwithstanding the foregoing provisions of this Section 4.2, if
the managing underwriter, the Commission, the Securities Act or the form on
which the registration statement is to be filed with respect to a requested
registration would require the conduct of an audit other than the regular
audit conducted by the Issuer at the end of its fiscal year, the filing of the
registration statement requested pursuant to this Section may be delayed until
the completion of such regular audit.
SECTION 4.3. Registration Upon Request of Blackstone Investors.
(a) If, at any time after the Subsequent Closing Date, the Issuer shall
receive a written request from any of the Blackstone Investors to register
Registrable Shares, which request shall specify the intended method of
disposition thereof, the Issuer shall promptly give notice of such request to
the other Holders and thereupon shall (i) prepare and file a registration
statement under the Securities Act covering (A) the number of the Registrable
Shares which are the subject of such request and (B) all unissued shares of
Common Stock which the Issuer has elected to register for itself and all other
Registrable Shares which the Holders shall have requested the Issuer to
register pursuant to Section 4.4 and (ii) use its commercially reasonable best
efforts to cause such registration statement to become effective. The
managing underwriter of an offering pursuant to this subparagraph (a) shall be
selected by the Blackstone Investors and shall be reasonably acceptable to the
Issuer.
(b) In the event that the Blackstone Investors determine for any
reason not to proceed with a registration at any time before the registration
statement has been declared effective by the Commission, and such registration
statement, if theretofore filed with the Commission, is withdrawn with respect
to the Registrable Shares covered thereby, and the Blackstone Investors bear
their own expenses and reimburse the Issuer for all out-of-pocket expenses
incurred by it attributable to the registration of such Registrable Shares,
then the Blackstone Investors shall not be deemed to have exercised a right to
require the Issuer to register Registrable Shares pursuant to this Section
4.3. If a registration statement filed by the Issuer at the request of the
Blackstone Investors pursuant to this Section 4.3 is withdrawn at the
initiative of the Issuer, then the Blackstone Investors shall not be deemed to
have exercised a right to require the Issuer to register Registrable Shares
pursuant to this Section 4.3.
(c) If a requested registration pursuant to this Section 4.3
involves an underwritten offering and the managing underwriter advises the
Issuer in writing that, in its opinion, the number of securities requested to
be included in such registration (including securities of the Issuer which are
not Registrable Shares) exceeds the largest number of securities which can be
sold in such offering, the Issuer will include in such registration shares of
Common Stock in the priority listed below, (i) first, the number of
Registrable Shares requested to be registered by all Holders, pro rata in
accordance with the number of shares owned by such Holders and (ii) second,
the number of shares proposed to be sold by the Issuer.
(d) The obligation of the Issuer under this Section 4.3 shall be
limited to two registration statements in any twelve- month period, up to a
total of five registration statements. Subject to Section 4.3(b), the Issuer
shall pay the expenses in connection with such registration statement
described in Section 4.6.
(e) Notwithstanding the foregoing provisions of this Section 4.3, if
the managing underwriter, the Commission, the Securities Act or the form on
which the registration statement is to be filed with respect to a requested
registration would require the conduct of an audit other than the regular
audit conducted by the Issuer at the end of its fiscal year, the filing of the
registration statement requested pursuant to this Section may be delayed until
the completion of such regular audit.
SECTION 4.4. Incidental Registration Rights. Each time the Issuer
shall determine to proceed with the actual preparation and filing of a
registration statement under the Securities Act in connection with the
proposed offer and sale of its Common Stock (other than a registration
statement on Form S- 4, S-8, or other limited purpose form), whether or not
for sale for its own account, the Issuer will give written notice of its
determination to the Holders. Upon written request of any Holder given within
30 days after receipt of any such notice from the Issuer, the Issuer will,
except as herein provided, cause all Registrable Shares which have been
requested to be included in the registration to be included in such
registration statement; provided, however, that nothing herein shall prevent
the Issuer from, at any time, abandoning or delaying any registration. If any
registration statement pursuant to this Section 4.4 shall be underwritten, in
whole or in part, the Issuer may require that the Common Stock requested for
inclusion pursuant to this Section 4.4 be included in the underwriting on the
same terms and conditions as the securities otherwise being sold through the
underwriters. If, upon the written advice of the managing underwriter of such
Public Offering, the inclusion of all of the Common Stock originally covered
by requests for registration would have an adverse effect on the offering of
securities (including the price at which such securities could be offered),
the number of shares of Common Stock to be included in the Public Offering may
be reduced in the following manner: (1) first, the shares of Common Stock
held by those record holders of Common Stock who are not Holders shall be
excluded from such underwritten public offering by the managing underwriter on
a pro rata basis according to the respective numbers of shares held by such
respective holders; and, subject to the next sentence, (2) second, after
reduction as provided in clause (1) to the full extent of such shares, the
shares of Common Stock held by all Holders shall be excluded on a pro rata
basis according to the respective numbers of shares held by such respective
holders; provided, however, that in the case of an Initial Public Offering of
the Common Stock of the Issuer, all Registrable Shares of the Blackstone
Investors shall be excluded pursuant to this clause (2) prior to the exclusion
of any Registrable Shares of any other Holders. Notwithstanding anything to
the contrary in the foregoing, to the extent that the preceding sentence
conflicts with Section 4.1(c), 4.2(g) or 4.3(c), Section 4.1(c), 4.2(g) or
4.3(c), as the case may be, shall control.
SECTION 4.5. Registration Procedures. If and whenever the Issuer
is required by the provisions of Sections 4.1, 4.2, 4.3 or 4.4 to effect the
registration of shares of Common Stock under the Securities Act, the Issuer
will:
(a) prepare and file with the Commission a registration statement
with respect to such securities, and use its commercially reasonable best
efforts to cause such registration statement to become and remain effective
for such period as may be reasonably necessary to effect the sale of such
securities, not to exceed 180 days; provided, however, that the Issuer may
discontinue any registration of its securities that is being effected pursuant
to Section 4.4 at any time;
(b) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for such period
as may be reasonably necessary to effect the sale of such securities, not to
exceed 180 days; provided, however, that the Issuer may discontinue any
registration of its securities that is being effected pursuant to Section 4.4
at any time;
(c) furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order
to facilitate the public offering of such securities;
(d) use its commercially reasonable best efforts to register or
qualify the securities covered by such registration statement under such state
securities or Blue Sky Laws of such jurisdictions as such participating
Holders may reasonably request within 20 days following the original filing of
such registration statement, except that the Issuer shall not for any purpose
be required to execute a general consent to service of process or to qualify
to do business as a foreign corporation in any jurisdiction wherein it is not
so qualified;
(e) notify such holders participating in such registration, promptly
after it shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming a
part of such registration statement has been filed;
(f) notify the participating Holders in the event that the Issuer
becomes aware that any prospectus required to be delivered by Holders pursuant
to the Securities Act contains an untrue statement of a material fact or fails
to state a material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading and, at the
request of any such Holder prepare, promptly file with the Commission and
deliver to such Holder such amendments or supplements to the prospectus as may
be necessary so that the prospectus, as so amended or supplemented, shall not
contain an untrue statement of a material fact or fail to state a material
fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading;
(g) advise such Holders, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such registration statement or the initiation
or threatening of any proceeding for that purpose and promptly use its best
efforts to prevent the issuance of any stop order or to obtain its withdrawal,
if such stop order should be issued; and
(h) if such registration statement includes an underwritten public
offering, enter into a customary underwriting agreement and, at the closing
provided for in such underwriting agreement provide such of the following
documents as are required thereunder: (i) an opinion or opinions of counsel to
the Issuer; and (ii) a cold comfort letter or letters from the independent
certified public accountants of the Issuer covering such matters as are
customarily covered by such letters.
The Issuer may require each Holder of Registrable Shares as to which
any registration is being effected to furnish the Issuer with such information
regarding such Holder and pertinent to the disclosure requirements relating to
the registration and the distribution of such Registrable Shares as the Issuer
may from time to time reasonably request in writing.
Each Holder of Registrable Shares agrees that, upon receipt of any
notice from the Issuer of the happening of any event of the kind described in
subparagraph (f) above, such Holder will forthwith discontinue disposition of
Registrable Shares pursuant to the registration statement covering such
Registrable Shares until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by such subparagraph, and, if
so directed by the Issuer, such Holder will deliver to the Issuer (at the
Issuer's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Shares
current at the time of receipt of such notice.
SECTION 4.6. Expenses. With respect to a registration requested
pursuant to Sections 4.1, 4.2 and 4.3 (except as otherwise provided in such
Section with respect to registrations voluntarily terminated at the request of
the Holders that elect to pay certain expenses) and with respect to each
inclusion of Registrable Shares in a registration statement pursuant to
Section 4.4, the Issuer shall bear the following fees, costs and expenses:
all registration, filing and listing fees, printing expenses, fees and
disbursements of counsel and accountants for the Issuer and all legal fees and
disbursements and other expenses of complying with state securities or Blue
Sky Laws of any jurisdictions in which the securities to be offered are to be
registered or qualified. Fees and disbursements of counsel and accountants
for the Holders, underwriting discounts and commissions, transfer taxes and
any other expenses incurred by the Holders not expressly included above shall
be borne by the applicable Holders.
SECTION 4.7. Indemnification.
(a) The Issuer will indemnify and hold harmless each Holder whose
shares which are included in a registration statement pursuant to the
provisions of Section 4.1, 4.2, 4.3 or 4.4 each officer, director and
affiliate of each such Holder, any underwriter (as defined in the Securities
Act) for such holder and each person, if any, who controls such holder or such
underwriter within the meaning of the Securities Act, from and against any and
all loss, damage, liability, cost and expense to which such Holder, director,
officer, affiliate, underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, damages, liabilities,
costs or expenses are caused by any untrue statement or alleged untrue
statement of any material fact contained in such registration statement, any
final prospectus relating thereto or any amendment or supplement thereto, 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, in light of the circumstances in which they were made, not
misleading; provided, however, that the Issuer will not be liable in any such
case to the extent that any such loss, damage, liability, cost or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information
furnished by such Holder, such underwriter or such controlling person in
writing specifically for use in the preparation thereof.
(b) Each Holder whose shares are included in a registration pursuant
Section 4.1, 4.2, 4.3 or 4.4 will indemnify and hold harmless the Issuer, an
director or officer thereof, any underwriter and any controlling person
(within the meaning of the Securities Act) of the Issuer or any such
underwriter from and against any and all loss, damage, liability, cost or
expense to which the Issuer or such director, officer, underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue or alleged untrue statement of any material fact contained in such
registration statement, any final prospectus relating thereto or any amendment
or supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
strict conformity with written information furnished by such Holder
specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of subparagraph (a) or (b) of this Section 4.7 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said
subparagraphs (a) or (b), promptly notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 4.7, except to the extent the indemnifying party was
prejudiced by such omission. In case such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to participate in, and,
to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants
in any action include both the indemnified party and the indemnifying party
and there is a conflict of interest which would prevent counsel for the
indemnifying party from also representing the indemnified party the
indemnified party or parties shall have the right to select one firm of
separate counsel satisfactory to the indemnifying party to participate in the
defense of such action on behalf of all indemnified parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party pursuant to the provisions of said subparagraphs (a) or (b)
for any legal or other expense subsequently incurred by such indemnified party
in connection with the defense thereof, other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed counsel in
accordance with the proviso of the preceding sentence, in which case only the
reasonable fees and expenses of such single firm shall be indemnifiable; (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after the notice of the commencement of the action; or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party.
SECTION 4.8. Holdback Agreement. If any registration of
Registrable Shares shall be in connection with an underwritten public
offering, each Investor and Affiliated Transferee of any Investor (other than
an Affiliated Transferee of a MLGA Investor or MLGA Partner) agrees not to
effect any public sale or distribution (except in connection with such
underwritten public offering), including any sale pursuant to Rule 144 under
the Securities Act, of any equity securities of the Issuer, or of any security
convertible into or exchangeable or exercisable for any equity security of the
Issuer (in each case, other than as part of such underwritten public
offering), during the seven days prior to, and during the 180-day period (or
such shorter period as the managing underwriters may require or permit)
beginning on, the effective date of such registration, and the Issuer hereby
also so agrees and agrees to use reasonable efforts to cause each other Holder
of any equity security, or of any security convertible into or exchangeable or
exercisable for any equity security, of the Issuer purchased from the Issuer
(at any time other than in a public offering) to so agree.
ARTICLE V
PAYMENT OF CERTAIN FEES; REPORTING;
AFFILIATE TRANSACTIONS
SECTION 5.1. Blackstone Monitoring Fee. From and after the
Subsequent Closing Date, the Issuer or Haynes shall pay to Blackstone
Management Partners L.P. or any of its Affiliates a monitoring fee in the
amount of $500,000 per annum, payable annually in arrears on each anniversary
of the Subsequent Closing Date.
(b) Notwithstanding any provision of subparagraph (a), without the
prior approval of the Board of Directors and a majority of the Disinterested
Directors of the Board of Directors, the aggregate amount payable to
Blackstone Management Partners L.P. or its Affiliates pursuant to this Section
5.1 shall in no event exceed $2,500,000.
SECTION 5.2. Periodic Reporting. (a) For so long as the MLGA
Investors hold at least 10% or more of the number of shares of Common Stock
held by the MLGA Investors immediately following the Subsequent Closing Date
(as such number shall be adjusted to account for stock splits, dividends,
subdivisions, combinations, reclassifications or similar transactions effected
by the Issuer after the Subsequent Closing Date), the Issuer shall deliver to
the MLGA Investors, (i) (A) as soon as such documents are filed with the
Commission, each Annual Report on Form 10-K, Quarterly Report on Form 10-Q and
Current Report on Form 8-K filed by Haynes with the Commission or (B) if
Haynes ceases to be a reporting company under the Exchange Act for any reason,
annual audited financial statements and quarterly unaudited financial
statements of Haynes and (ii) within 30 days after the end of each calendar
month, the unaudited consolidated financial statements of Haynes.
(b) For so long as any Holder holds shares of Common Stock, the
Issuer shall deliver to such Holder (i) as soon as such documents are filed
with the Commission, each Annual Report on Form 10-K and Quarterly Report on
Form 10-Q filed by the Issuer with the Commission or (ii) if the Issuer is not
a reporting company under the Exchange Act, reasonably promptly after such
financial statements become available in the ordinary course of business,
annual audited financial statements and quarterly unaudited financial
statements of the Issuer.
SECTION 5.3. Rule 144. The Issuer covenants that, after the Initial
Public Offering, it will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by
the Commission thereunder (or, if the Issuer is not required to file such
reports, it will, upon the request of any Holder of Registrable Shares, make
publicly available such information as is necessary to permit sales pursuant
to Rule 144 under the Securities Act), all to the extent required from time to
time to enable Holders to sell Registrable Shares without registration under
the Securities Act within the limitation of the exemptions provided by (a)
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or (b) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Shares, the Issuer
will deliver to such Holder a written statement as to whether it has complied
with the requirements hereof.
SECTION 5.4. Limitations on Affiliate Transactions. The Issuer
will not, and will not permit any direct or indirect subsidiary to, directly
or indirectly enter into any transaction or conduct any business with any
Blackstone Investor or any Affiliate thereof (an "Affiliate Transaction"),
unless (i) either (A) such transaction has been approved by a majority of the
Disinterested Directors of the Issuer or (B) the Issuer has received a written
opinion from an independent investment banking firm that such Affiliate
Transaction is fair to the Issuer and its subsidiaries from a financial point
of view and (ii) in the case of an Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration payable by or to the
Blackstone Investors and their Affiliates in excess of $5 million, the Issuer
has received a written opinion from an independent nationally recognized
investment banking firm that such Affiliate Transaction and all related
Affiliate Transactions are fair to the Issuer and its subsidiaries from a
financial point of view. Notwithstanding the foregoing, the payment by the
Issuer or any of its subsidiaries of (x) reasonable and customary investment
banking fees for services rendered by any Blackstone Investor or any Affiliate
thereof, or (y) the monitoring fee payable pursuant to Section 5.1 of this
Agreement shall not be considered an "Affiliate Transaction" for purposes
hereof and shall not be subject to the requirements of this Section.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.
SECTION 6.2. No Inconsistent Agreements. The Issuer will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or grant rights superior to the rights granted to the
Holders in this Agreement. The Issuer has not previously entered into any
agreement with respect to any of its debt or equity securities granting any
registration rights to any Person other than the Original Stockholders'
Agreement and the Subscription Agreement.
SECTION 6.3. Frustration of Purpose; Administration of Agreement.
Holders may not do directly or indirectly that which is prohibited by this
Agreement. The Board of Directors shall have general authority to administer
the terms of this Agreement, including, without limitation, the power to
enforce the prohibition set forth in the preceding sentence and the power to
make allocations pursuant to Articles III and IV. All such actions and
allocations shall be binding, absent manifest error, and the Issuer shall not
be liable therefor absent gross negligence or willful misconduct.
SECTION 6.4. Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto with respect to the subject matter
of this Agreement.
SECTION 6.5. Notices. Any notice, request, instruction or other
document to be given hereunder by any party hereto to another party hereto
shall be in writing (including telex, telecopier or similar writing) and shall
be given to such party at its address, telex or telecopier number set forth on
the signature pages hereof or, in the case of a Private Transferee, to the
address, telex or telecopier number set forth in the written agreement
pursuant to which such Private Transferee becomes bound hereunder or to such
other address as the party to whom notice is to be given may provide in a
written notice to the party giving such notice, a copy of which written notice
shall be on file with the Secretary of the Issuer. Each such notice, request
or other communication shall be effective (i) if given by telex or telecopy,
when such telex or telecopy is transmitted to the telex or telecopy number
specified in this Section and the appropriate answer back is received or (ii)
if given by mail, 72 hours after such communication is deposited in the mails
with first class postage prepaid addressed as aforesaid or (iii) if given by
any other means, when delivered at the address specified in this Section 6.5.
SECTION 6.6. Applicable Law. This Agreement shall be governed by
and construed in accordance with, the laws of the State of New York applicable
to contracts made and to be performed in that State.
SECTION 6.7. Severability. The invalidity or unenforceability of
any provisions of this Agreement in any jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of this
Agreement, including any such provision, in any other jurisdiction, it being
intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
SECTION 6.8. Effectiveness. (a) This Agreement shall become
effective with respect to all Investors on the later to occur of (i) the first
date on which any shares are repurchased by the Issuer or subscribed for by
the Blackstone Investors pursuant to the Recapitalization and (ii) the date on
which this Agreement is executed and delivered by each of (A) the Majority
Holders (as defined in the Original Stockholders' Agreement, (B) a majority of
the "Management Investors" (as defined in the Original Stockholders' Agreement
and (C) a majority of the Institutional Holders (as defined in the Original
Stockholders' Agreement); provided that this Agreement shall become effective
with respect to each Investor party hereto on the later to occur of (x) the
execution and delivery by such Investor of this Agreement and (y) the first
date on which any shares are repurchased by the Issuer or subscribed for any
the Blackstone Investors pursuant to the Recapitalization, regardless of
whether this Agreement has become effective with respect to all Investors who
have not signed this Agreement.
(b) By its execution and delivery hereof, each Investor party to
the Original Stockholders' Agreement agrees that such Agreement is hereby
amended in its entirety and superseded by this Agreement effective as of the
effectiveness of this Agreement and the rights and obligations of the
Investors thereunder are superseded in their entirety by the provisions of
this Agreement. Further, by its execution and delivery hereof, each Investor
party to the Original Stockholders' Agreement hereby agrees that any and all
claims and rights that such Investor may have under the Original Stockholders'
Agreement, including any and all claims for a breach of the Original
Stockholders' Agreement which occurred prior to the execution of this
Agreement, are hereby unconditionally waived and released in all respects and
that such Investor will not make any claim or assert any right under the
Original Stockholders' Agreement after the execution and delivery of this
Agreement by such Investor.
(c) Unless and until this Agreement is executed by a majority of
the Institutional Holders (as defined in the Original Stockholders'
Agreement): (i) the Issuer agrees to continue to provide to the Institutional
Holders (as defined in the Original Stockholders' Agreement) who do not
execute this Agreement the rights, if any, to which they are entitled under
Section 3.2 of the Original Stockholders' Agreement and (ii) the Founding
Investors (as defined in the Original Stockholders' Agreement) and the
Management Holders (as defined in the Original Stockholders' Agreement) who
are parties to this Agreement agree to continue to provide the Institutional
Holders who do not execute this Agreement with the rights, if any, to which
they are entitled under Section 2.3 of the Original Stockholders' Agreement
(collectively, the "Prior Rights"). The Holders agree to the extension and
honoring of the Prior Rights and agree that the Prior Rights shall have
priority over and shall control in the event of any conflict with the
provisions of this Agreement.
SECTION 6.9. Termination. This Agreement shall terminate and be of
no further force or effect upon the tenth anniversary of its initial effective
date.
SECTION 6.10. Additional Holders. Each employee of the Issuer or
of any direct or indirect subsidiary of the Issuer (including Haynes) who
becomes a holder of Common Stock after the date hereof shall, at the option of
the Issuer, become a "Management Investor" party to this Agreement and be
bound by its terms and be able to enforce any rights as a Management Investor
hereunder. In addition, the Issuer shall have the right, at the time of the
grant by the Issuer to any employee of any option to purchase Common Stock, to
cause the Common Stock issuable upon exercise of such option to be covered by
this Agreement and the holder of such option to become a "Management Investor"
hereunder at the time of exercise of such option. Each Person to whom the
Issuer issues shares of Common Stock after the date hereof which were not
outstanding or subject to issuance upon the exercise of options outstanding on
the date hereof shall, at the option of the Issuer, become an "Other Investor"
party to this Agreement and be bound by its terms and be able to enforce any
rights as an Other Investor hereunder. If the Issuer so determines, such
employee or such Person shall enter into a supplementary agreement with the
Issuer to such effect.
SECTION 6.11. Other Agreements. Except to the extent set forth in
Section 6.8, nothing contained in this Agreement shall be deemed to be a
waiver of, or release from, any obligations any party hereto may have under,
or any restrictions on the transfer of Common Stock or other securities of the
Issuer or any direct or indirect subsidiary of the Issuer imposed by, any
other agreement, including, but not limited to, the Subscription Agreement.
SECTION 6.12. Successors, Assigns, Transferees. To the extent set
forth herein, the provisions of this Agreement shall be binding upon and
accrue to the benefit of the parties hereto and their respective successors
and permitted assigns; provided, however, (i) if any party ceases to own any
shares of Common Stock or securities convertible into Common Stock, then
notwithstanding anything to the contrary stated herein, such party shall no
longer have any rights or obligations hereunder, and (ii) no Private
Transferee (other than Affiliated Transferees who are required to be bound by
written agreement to the terms and conditions hereof and Permitted
Transferees) shall be bound by any obligations under this Agreement, but shall
have the rights of a Holder specified in this Agreement.
SECTION 6.13. Amendments; Waivers. (a) No failure or delay on the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall ny single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
(b) This Agreement may not be amended, modified or supplemented and
no waivers of or consents to departures from the provisions hereof may be
given unless consented to in writing by each of the Blackstone Investors,
provided that (i) any amendment, modification, supplement or waiver that
adversely affects any Holders other than the Blackstone Investors shall not
become effective without the written consent of a majority of the Holders
other than the Blackstone Investors adversely affected by such amendment,
modification, supplement or waiver, and (ii) any amendment, modification,
supplement or waiver which adversely affects rights or obligations of the MLGA
Investors in a manner differently from all other Holders shall not become
effective without the written consent of the MLGA Investors.
SECTION 6.14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 6.15. Attorneys' Fees. In any action or proceeding brought
to enforce any provisions of this Agreement, or where any provisions hereof if
validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorneys' fees in addition to any other available remedy.
SECTION 6.16. Remedies. The parties hereby acknowledge that it is
impossible to measure in money the damages which will accrue to a party hereto
by reason of a failure to perform any of the obligations under this Agreement.
Therefore, if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, any Person against whom such action or
proceeding is brought hereby waives the claim or defense therein that such
party has an adequate remedy at law, and such Person shall not urge in any
such action or proceeding the claim or defense that such remedy at law exists.
SECTION 6.17. Recapitalization, etc. In the event that any capital
stock or other securities are issued in respect of, in exchange for, or in
substitution of, any shares of Common Stock by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial
or complete liquidation, stock dividend, split-up, sale of assets,
distribution to stockholders or combination of the shares of Common Stock or
any other change in capital structure of the Issuer, appropriate adjustments
shall be made with respect to the relevant provisions of this Agreement so as
to fairly and equitably preserve, as far as practicable, the original rights
and obligations of the Holders under this Agreement and the term "Common
Stock", as used herein, shall be deemed to include shares of such capital
stock or other securities, as appropriate. This provision shall not require
the Issuer to effect any adjustments in connection with granting of any
employee stock options pursuant to such employee benefit plans of the Issuer
which may be from time to time in effect.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first above written.
MLGA FUND II, L.P.
By: MLGAL Partners,
general partner
By:_________________________
Name:
Title:
MLGAL PARTNERS, L.P.
By:_________________________
Name:
Title:
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II L.L.C.,
general partner
By: /s/ David A. Stockman
Name: David A. Stockman
Title: Member
BLACKSTONE OFFSHORE CAPITAL
PARTNERS II MERCHANT BANKING
FUND L.P.
By: BLACKSTONE MANAGEMENT ASSOCIATES II L.L.C.,
general partner
By: /s/ David A. Stockman
Name: David A. Stockman
Title: Member
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP, L.P.
By: BLACKSTONE MANAGEMENT
ASSOCIATES II L.L.C.,
general partner
By: /s/ David A. Stockman
Name: David A. Stockman
Title: Member
OTHER INVESTORS:
/s/ Michael D. Austin
Michael D. Austin
/s/ Joseph F. Barker
Joseph F. Barker
/s/ F. Galen Hodge
F. Galen Hodge
/s/ Charles J. Sponaugle
Charles J. Sponaugle