Exhibit 10.19
REGISTRATION RIGHTS AGREEMENT
Dated as of August 25, 1999
by and among
PCA INTERNATIONAL, INC.
and
THE PURCHASERS WHO ARE SIGNATORIES HERETO
TABLE OF CONTENTS
Page
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Section 1. DEFINITIONS....................................................1
Section 2. REGISTRATION RIGHTS............................................3
2.1 Demand Registration Right......................................3
2.2 Incidental Registration........................................5
2.3 Supplements and Amendments.....................................6
2.4 Restrictions on Public Sale by the Company and Others..........6
2.5 Underwritten Registrations.....................................7
2.6 Registration Procedures........................................7
2.7 Registration Expenses.........................................13
2.8 Rule 144......................................................14
Section 3. INDEMNIFICATION...............................................14
3.1 Indemnification by the Company................................14
3.2 Indemnification by Holder of Registrable Securities...........15
3.3 Conduct of Indemnification Proceeding.........................15
3.4 Contribution..................................................16
3.5 Other Indemnities.............................................17
Section 4. MISCELLANEOUS.................................................17
4.1 Remedies......................................................17
4.2 No Inconsistent Agreements....................................17
4.3 Amendments and Waivers........................................17
4.4 Notices.......................................................18
4.5 Successors and Assigns........................................18
4.6 Counterparts..................................................18
4.7 Headings......................................................18
4.8 Governing Law.................................................18
4.9 Severability..................................................19
4.10 Entire Agreement..............................................19
4.11 Attorneys' Fees...............................................19
4.12 Securities Held by the Company or Its Subsidiaries............19
Signature Pages.........................................................S-1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement"), dated as of August
25, 1999, by and among PCA INTERNATIONAL, INC., a North Carolina corporation (or
any successor, the "Company"), and the purchasers whose signatures appear on the
execution pages of this Agreement (each a "Purchaser" and collectively, the
"Purchasers").
This Agreement is entered into in connection with the Bridge Loan
Agreement, dated as of August 25, 1998, by and among the Company, the Guarantors
named on the signature pages thereto, the Lenders referred to therein (the
"Lenders"), NMS, as Arranger (the "Arranger"), NationsBridge, as Administrative
Agent (the "Administrative Agent") and The Chase Manhattan Bank, as a Lender
("Chase"). In order to induce the Arranger and Chase to enter into the Bridge
Loan Agreement, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution of this Agreement is required by the
terms of the Bridge Loan Agreement.
The parties hereby agree as follows:
Section 1. DEFINITIONS
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Bridge Loan Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Advice" has the meaning set forth in the last paragraph of Section 2.6.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person or (ii) directly or indirectly owning or holding
five percent (5%) or more of the equity interest in such Person. For purposes of
this definition, "control" when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" has the meaning set forth in the first paragraph of this
Agreement.
"Common Stock" means the Common Stock, par value $.20 per share, of the
Company.
"Company" has the meaning set forth in the first paragraph of this
Agreement.
"DTC" has the meaning set forth in Section 2.6(i) of this Agreement.
"Effectiveness Date" has the meaning set forth in Section 2.1(a) of this
Agreement.
"Effectiveness Period" has the meaning set forth in Section 2.1(a) of this
Agreement.
"Exchange Act" has the meaning set forth in Section 2.6(a) of this
Agreement.
"Exchange Shares" means the shares of Common Stock, par value $.20 per
share, of the Company issuable or issued in exchange for the warrants to
purchase Common Stock pursuant to the terms of the Warrant Agreement.
"Filing Date" has the meaning set forth in Section 2.1(a) of this
Agreement.
"Holder" means any holder of a Registrable Security.
"Incidental Registration" has the meaning set forth in Section 2.2(a) of
this Agreement.
"Inspectors" has the meaning set forth in Section 2.6(n) of this Agreement.
"NASD" has the meaning set forth in Section 2.7 of this Agreement.
"Person" means any individual, trustee, corporation, partnership, joint
stock company, trust, unincorporated association, union, business association,
firm or other legal entity.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement" has the meaning set forth in the second paragraph of
this Agreement.
"Purchaser" has the meaning set forth in the first paragraph of this
Agreement.
"Purchasers" has the meaning set forth in the first paragraph of this
Agreement.
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"Registrable Securities" means the Exchange Shares and any other securities
issued or issuable with respect to the Exchange Shares by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization; provided,
however, that a security ceases to be a Registrable Security when it is no
longer a Transfer Restricted Security.
"Registration Statement" means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of
Section 2.1 of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Transfer Restricted Security" means a share of Preferred Stock or an
Exchange Share until such share of Preferred Stock or Exchange Share, as the
case may be, (i) has been effectively registered under the Securities Act and
disposed of in accordance with a registration statement filed under the
Securities Act covering it or (ii) distributed to the public pursuant to Rule
144.
"underwritten registration" or "underwritten offering" means a registration
in which securities of the Company (including Registrable Securities) are sold
to an underwriter for reoffering to the public.
"Warrant Agreement" means that certain Warrant Agreement, dated as of
August 25, 1999, by and between the Company and United States Trust Company of
New York.
Section 2. REGISTRATION RIGHTS
2.1 Demand Registration Right. (a) The Company covenants and agrees with
each Holder of Registrable Securities that if on or after August 25, 2003, the
Company receives a written request from Holders of not less than 30% of the then
outstanding Registrable Securities, then within sixty (60) days after receipt of
such notice (the 60th day after such notice, the "Filing Date") the Company
shall use its best efforts to file a Registration Statement and cause such
Registration Statement to become
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effective under the Securities Act at the earliest possible date after such
notice (such date, the "Effectiveness Date") with respect to the offering and
sale or other disposition of such Registrable Securities as such Holders desire
to have covered by such Registration Statement. The Company shall use its best
efforts to continuously maintain the effectiveness of such Registration
Statement until the earlier of (i) 270 days after the effective date of the
Registration Statement or (ii) the consummation of the distribution by the
Holders of all of the Registrable Securities covered by such Registration
Statement (the "Effectiveness Period"). The Company shall not include any
securities other than the Registrable Securities in any such Registration
Statement pursuant to any "piggyback" or similar registration rights granted by
the Company without the consent of the Holders of a majority of the Registrable
Securities to be covered by such Registration Statement. Notwithstanding
anything in this Agreement to the contrary,
(A) the Company shall not be required to effect more than one
registration pursuant to this Section 2.1.
(B) if the intended method of distribution is an underwritten public
offering, the Company shall not be required to effect such registration
pursuant to this Section 2.1(a) unless such underwriting shall be conducted
on a "firm commitment" basis, and
(C) any Holder whose Registrable Common Stock was to be included in
any such registration, by written notice to the Company, may withdraw such
request and, if upon receipt of such notice of the withdrawal of such
request the Holders that have not elected to withdraw do not hold, in the
aggregate, the requisite percentage of the Common Stock to initiate a
request under this Section 2.1(a), then the Company shall not effect such
registration and such registration shall not be deemed effected for the
purpose of clause (A) above.
Each notice to the Company requesting registration to be effected shall set
forth (1) the number of Exchange Shares to be included; (2) the name of the
Holders of the Registrable Securities and the amount to be sold; and (3) the
proposed manner of sale. Within 10 (ten) days after receipt of such notice, the
Company shall notify each Holder of Registrable Securities who is not a party to
the written notice served on the Company (or the transferee(s) of such Holder)
and offer to them the opportunity to include their Registrable Securities in
such registration. A Registration Statement will not count as complying with the
terms hereof unless it is declared effective by the SEC and remains continuously
effective for the Effectiveness Period.
(b) Each Holder of Registrable Securities agrees, if requested by the
managing underwriter or underwriters in an underwritten offering, not to effect
any public sale or distribution of Registrable Securities or of securities of
the Company of the same class as any securities included in such Registration
Statement, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such underwritten registration), during the 10-day period
prior to, and during the 180-day period beginning on, the closing date of each
underwritten offering made pursuant to such Registration
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Statement, to the extent timely notified in writing by the Company or the
managing underwriter or underwriters.
(c) The foregoing provisions of Section 2.1(b) shall not apply to any
Holder of Registrable Securities if such Holder is prevented by applicable
statute or regulation from entering into any such agreement; provided, however,
that any such Holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of any
applicable class of Registrable Securities commencing on the date of sale of
such applicable class of Registrable Securities unless it has provided 45 days
prior written notice of such sale or distribution to the underwriter or
underwriters.
2.2 Incidental Registration. (a) If, at any time when Registrable
Securities are outstanding, the Company proposes to register any of its
securities under the Act (other than a registration on Form S-4 or S-8 or any
successor form thereto), whether or not for sale for its own account, and the
registration form to be used therefor may be used for the registration of
Registrable Securities, it will each such time give prompt written notice to all
Holders of Registrable Securities of the Company's intention to do so and, upon
the written request of any such Holder to the Company made within 10 days after
the receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Holder and the intended method of
disposition thereof), the Company will use its best efforts to effect the
registration (an "Incidental Registration") under the Act of all Registrable
Securities which the Company has been so requested to register by the Holders
thereof.
(b) Subject to Section 2.2(c), if an Incidental Registration is an
underwritten registration, and the managing underwriters thereof advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company will include in such registration (i) first, the securities the Company
proposes to sell for its own account in such registration, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the Holders of such Registrable Securities on the basis of the number of
shares owned by each such Holder and such beneficiaries and (iii) third, other
securities requested to be included in such registration.
(c) Notwithstanding Section 2.2(b), if an Incidental Registration is an
underwritten secondary registration solely on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
Holders of such Registrable Securities on the basis of the number of shares
owned by each such Holder, and (iii) third, other securities requested to be
included in such registration.
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2.3 Supplements and Amendments. If a Registration Statement ceases to be
effective for any reason at any time during the period for which it is required
to be effective under this Agreement, the Company shall use its best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof
and shall in connection therewith promptly supplement and amend any such
Registration Statement in a manner reasonably and in good faith expected to
obtain the withdrawal of the order suspending the effectiveness thereof, and the
Company shall use its best efforts to cause any such Registration Statement to
be declared effective as soon as practicable after such amendment or supplement
and to keep such Registration Statement continuously effective for a period
equal to the period for which it is required to be effective under this
Agreement less the aggregate number of days during which any predecessor
Registration Statement was previously effective.
The Company shall supplement and amend a Registration Statement if required
by the rules, regulations or instructions applicable to the applicable
registration form for such Registration Statement, if required by the Securities
Act or the SEC, or if reasonably requested by the Holders of a majority of the
Registrable Securities covered by such Registration Statement or by any
underwriter of the Registrable Securities.
2.4 Restrictions on Public Sale by the Company and Others. The Company
agrees (i) that it shall not, and that it shall not cause or permit any of its
subsidiaries to, effect any public sale or distribution of any securities of the
same class as any of the Registrable Securities or any securities convertible
into or exchangeable or exercisable for such securities (or any option or other
right for such securities) (except for any securities issued to officers,
directors and/or employees of the Company or its subsidiaries pursuant to
options or agreements entered into with such officers, directors and/or
employees in connection with their employment or pursuant to the Company's stock
option, stock bonus and other stock plans and arrangements for officers,
directors and employees) during the 15-day period prior to, and during the
180-day period beginning on, the commencement of any underwritten offering of
Registrable Securities which has been scheduled prior to the Company or any of
its subsidiaries publicly announcing its intention to effect any such public
sale or distribution; (ii) that any agreement entered into after the date of
this Agreement pursuant to which the Company (or, if applicable, any subsidiary
of the Company) issues or agrees to issue any securities which have registration
rights shall contain (x) a provision under which the holders of such securities
agree, in the event of an underwritten offering of Registrable Securities, not
to effect any public sale or distribution of any securities of the same class as
any of the Registrable Securities (or any securities convertible into or
exchangeable or exercisable for any such securities), or any option or other
right for such securities, during the periods described in clause (i) of this
Section 2.4, in each case including a sale pursuant to Rule 144 under the
Securities Act (or any similar provision then in effect) and (y) a provision
that effects, upon notice given pursuant to Section 2.1 hereof to the Company
that an underwritten offering of Registrable Securities is to be undertaken, the
lapse of any demand registration rights with respect to any securities of the
Company (or, if applicable, of any subsidiary of the Company) until the
expiration of 180 days after the date of the completion of any such underwritten
offering; (iii) that the Company (and, if applicable, each subsidiary of the
Company) will not after the date hereof enter into any
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agreement or contract wherein the holders of any securities of the Company or of
any subsidiary of the Company issued or to be issued are granted any "piggyback"
registration tights with respect to any registration effected pursuant to
Section 2.1 hereof and (iv) that the Company (and, if applicable, each
subsidiary of the Company) will not after the date hereof enter into any
agreement or contract wherein the exercise by any Holder of its right to an
Incidental Registration hereunder would result in a breach thereof or a default
thereunder or would otherwise conflict with any provision thereof.
2.5 Underwritten Registrations. If any of the Registrable Securities
covered by a Registration Statement filed pursuant to Section 2.1 are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will manage the offering will be selected by the
Holders of not less than a majority of the Registrable Securities covered by
such Registration Statement and will be reasonably acceptable to the Company. If
the managing underwriter or underwriters advise the Company and the Holders in
writing that in the opinion of such underwriter or underwriters the amount of
Registrable Securities proposed to be sold in such offering exceeds the amount
of securities that can be sold in such offering, there shall be included in such
underwritten offering the amount of Registrable Securities which in the opinion
of such underwriter or underwriters can be sold, and such amount shall be
allocated pro rata among the Holders of Registrable Securities on the basis of
the number of Registrable Securities requested to be included by each such
Holder and all Holders. The Holders of Registrable Securities sold in any such
offering shall pay all underwriting discounts and commissions of the underwriter
or underwriters pro rata; provided, however, that this Section 2.5 shall not
relieve the Company of its obligations under Section 2.7 hereof.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holders
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Holders of not less than a majority of the Registrable
Securities and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
2.6 Registration Procedures. In connection with any Registration Statement,
the Company shall effect such registrations to permit the offering and sale of
the Registrable Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
possible:
(a) Prepare and file with the SEC as soon as practicable each such
Registration Statement and cause such Registration Statement to become effective
and remain effective as provided herein; provided, however, that before filing
any such Registration Statement or any Prospectus or any amendments or
supplements thereto (including documents that would be incorporated or deemed to
be incorporated therein by reference, including such documents filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") that would be
incorporated therein by reference), the Company shall afford promptly to the
Holders of the Registrable Securities covered by
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such Registration Statement their counsel and the managing underwriter or
underwriters, if any, an opportunity to review copies of all such documents
proposed to be filed a reasonable time prior to the proposed filing thereof and
the Company shall give reasonable consideration in good faith to any comments of
such Holders, counsel and underwriters; provided that the Company may
discontinue any registration of its securities giving rise to registration
rights pursuant to Section 2.2 hereof at any time prior to the effective date of
the registration statement relating thereto. The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto if
the Holders of a majority of the Registrable Securities covered by such
Registration Statement, their counsel, or the managing underwriter or
underwriters, if any, shall reasonably object in writing.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the time periods prescribed
hereby; cause the related Prospectus to be supplemented by any required
prospectus supplement and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
in all material respects with the provisions of the Securities Act, the Exchange
Act and the rules and regulations of the SEC promulgated thereunder applicable
to it with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities, their counsel and the
managing underwriter or underwriters, if any, promptly, and confirm such notice
in writing, (i) when a Prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective (including in such
notice a written statement that any Holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of such
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation or threatening of any proceedings for
that purpose, (iii) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the Registrable
Securities the representations and warranties of the Company contained in any
agreement (including any underwriting agreement) contemplated by Section 2.6(m)
below, to the knowledge of the Company, cease to be true and correct in any
material respect, (iv) of the receipt by the Company of any notification with
respect to (A) the suspension of the qualification or exemption from
qualification of the Registration Statement or any of the Registrable Securities
covered thereby for offer or sale in any jurisdiction, or (B) the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event the existence of any condition or information becoming known to the
Company that requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of such Registration Statement, it
will conform in all material respects with the requirements of the Securities
Act and it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, not misleading, and that in the case of the Prospectus, it
8
will conform in all material respects with the requirements of the Securities
Act and it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and (vi) of the Company's reasonable determination that a
post-effective amendment to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance of any order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Securities covered
thereby for sale in any Jurisdiction, and, if any such order is issued, to
obtain the withdrawal of any such order at the earliest practicable moment.
(e) If requested by the managing underwriter or underwriters, if any, or
the Holders of a majority of the Registrable Securities being sold in connection
with an underwriting offering, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters, if any, or such Holders reasonably request to be
included therein to comply with applicable law and (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment.
(f) Furnish to each Holder of Registrable Securities who so requests and to
counsel for the Holders of Registrable Securities and each managing underwriter,
if any, without charge, upon request, one conformed copy of the Registration
Statement and each post-effective amendment thereto, including financial
statements and schedules, and of all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (including exhibits
incorporated by reference).
(g) Deliver to each Holder of Registrable Securities, their counsel and
each underwriter if any, without charge, as many copies of each Prospectus
(including each form of prospectus) and each amendment or supplement thereto as
such Holders may reasonably request but only for so long as the Company is
required to keep such registration statement effective; and, subject to the last
paragraph of this Section 2.6, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the Holders of
Registrable Securities and the underwriter or underwriters or agents, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, cooperate with the
Holders of Registrable Securities, the underwriter or underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of, such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as may be
9
required to permit the resale thereof by the Holders of Registrable Securities,
or as the managing underwriter or underwriters reasonably request in writing;
provided, however, that where Registrable Securities are offered other than
through an underwritten offering, the Company agrees to cause its counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 2.6(h); keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be effective hereunder and do
any and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the securities covered thereby; provided,
however, that the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) become subject to taxation
in any jurisdiction where it is not then so subject.
(i) Cooperate with the Holders of Registrable Securities and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends whatsoever and shall be in a
form eligible for deposit with The Depository Trust Company ("DTC"); and enable
such Registrable Securities to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or Holders may
reasonably request at least two business days prior to any sale of Registrable
Securities in a firm commitment underwritten public offering.
(j) Use its reasonable best efforts to cause the Registrable Securities
covered by a Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be reasonably necessary to
enable the seller or sellers thereof or the underwriter or underwriters, if any,
to consummate the disposition of such Registrable Securities, except as may be
required solely as a consequence of the nature of such selling Holders business,
in which case the Company will cooperate in all reasonable respects with the
filing of the Registration Statement and the granting of such approvals.
(k) Upon the occurrence of any event contemplated by Section 2.6(c)(v) or
2.6(c)(vi) above, as promptly as practicable prepare a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and, subject to Section 2.6(a) hereof, file such with the
SEC so that, as thereafter delivered to the purchasers of Registrable Securities
being sold thereunder, such Prospectus will not contain 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, in light of the circumstances under
which they were made, not misleading and will otherwise comply with law.
(l) Prior to the effective date of a Registration Statement, (i) provide
the registrar for the Preferred Stock and the Exchange Shares or such other
Registrable
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Securities with printed certificates for such securities in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for such securities.
(m) Enter into an underwriting agreement in form, scope and substance as is
customary in underwritten offerings and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order to
expedite or facilitate the registration or disposition of such Registrable
Securities in any underwritten offering to be made of the Registrable Securities
in accordance with this Agreement, and in such connection, (i) make such
representations and warranties to the underwriter or underwriters, with respect
to the business of the Company and the subsidiaries of the Company, and the
Registration Statement, Prospectus and documents, if any, incorporated or deemed
to be incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) obtain an opinion of
counsel to the Company (which counsel and opinion (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriter or underwriters),
addressed to the underwriter or underwriters covering the matters customarily
covered in opinions requested in underwritten offerings with respect to
secondary distributions and such other matters as may be reasonably requested by
underwriters; (iii) use its reasonable best efforts to obtain "cold comfort"
letters and updates thereof (which letters and updates shall be reasonably
satisfactory in form, scope and substance to the managing underwriter or
underwriters) from the independent certified public accountants of the Company
(and, if applicable, the subsidiaries of the Company) and, to the extent
reasonably practicable, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement, addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with underwritten
offerings; and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than those
set forth in Section 3 hereof (or such other provisions and procedures
acceptable to Holders of a majority of Registrable Securities covered by such
Registration Statement and the managing underwriter or underwriters or agents)
with respect to all parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
(n) Make available for inspection by a representative of the Holders of
Registrable Securities being sold, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney or accountant
retained by such representative of the Holders or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, all pertinent financial and other records, pertinent corporate documents
and properties of the Company and the subsidiaries of the Company, and cause the
officers, directors and employees of the Company and the subsidiaries of the
Company to supply all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement; provided, however,
that any information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information, shall
11
be kept confidential by such Inspector and not used by such Inspector for any
purpose other than in connection with such Inspectors review of the Registration
Statement for such registration except to the extent (i) disclosure of such
information is required by court or administrative order, (ii) disclosure of
such information, in the written opinion of counsel to such Inspector (a copy of
which is furnished to the Company), is necessary to avoid or correct a
misstatement or omission of a material fact in the Registration Statement,
Prospectus or any supplement or post-effective amendment thereto or disclosure
is otherwise required by law, (iii) disclosure of such information is in the
written opinion of counsel for any such Inspector (a copy of which is furnished
to the Company), necessary or advisable in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to or involving this
Agreement or any of the transactions contemplated hereby or arising hereunder,
or (iv) such information becomes generally available to the public other than as
a result of a disclosure or failure to safeguard by such Inspector; without
limiting the foregoing, no such information shall be used by such Inspector as
the basis for any market transactions in securities of the Company or the
subsidiaries of the Company in violation of applicable law. Each selling Holder
of such Registrable Securities agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the Company or
of any of its Affiliates unless and until such is made generally available to
the public. Each selling Holder of such Registrable Securities further agrees
that it will, upon learning that disclosure of such information is sought in a
court of competent jurisdiction, give prompt 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.
(o) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its security holders
earnings statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than forty-five (45) days after the end of any 12-month
period (or ninety (90) days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to an underwriter or to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to an
underwriter or to underwriters in such an offering, commencing on the first day
of the first fiscal quarter of the Company after the effective date of the
relevant Registration Statement, which statements shall cover said 12-month
periods.
(p) Use its reasonable best efforts to cause all Registrable Securities
relating to such Registration Statement to be listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed.
Each seller of Registrable Securities as to which any registration is being
effected agrees, as a condition to the registration obligations with respect to
such Holder provided herein, to furnish promptly to the Company such information
regarding such seller and the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing to comply with the
Securities Act and other
12
applicable law. The Company may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request. If the identity of a
seller of Registrable Securities is to be disclosed in the Registration
Statement, such seller shall be permitted to include all information regarding
such seller as it shall reasonably request.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2.6(c)(ii), 2.6(c)(iv),
2.6(c)(v), or 2.6(c)(vi), such Holder will forthwith discontinue disposition of
such Registrable Securities covered by the Registration Statement or Prospectus
until such Holders receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 2.6(k), or until it is advised in writing
(the "Advice") by the Company that the use of the applicable prospectus may be
resumed, and has received copies of any amendments or supplements thereto, and,
if so directed by the Company, such Holder will either (i) deliver to the
Company, or (ii) destroy, all copies, other than permanent file copies, then in
such Holders possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period of time for which a Registration Statement is
required hereunder to be effective shall be extended by the number of days
during such periods from and including the date of the giving of such notice to
and including the date when each seller of Registrable Securities covered by
such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 2.6(k) or (y) the
Advice.
2.7 Registration Expenses. All fees and expenses incident to the
performance of or compliance with the provisions of Section 2 of this Agreement
by the Company shall be borne by the Company whether or not any Registration
Statement is filed or becomes effective, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the National Association of
Securities Dealers Inc. (the "NASD") in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, fees and disbursements of counsel for the
underwriter or underwriters in connection with Blue Sky qualifications of the
Registrable Securities and determination of the eligibility of the Registrable
Securities for investment under the laws of such jurisdictions as provided in
Section 2.6(h)), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities in a form eligible for
deposit with DTC and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriter or underwriters, if any, or, in respect of
Registrable Securities, by the Holders of a majority of Registrable Securities
included in any Registration Statement), (iii) reasonable fees and disbursements
of all independent certified public accountants referred to in Section
2.6(m)(iii) (including, without limitation, the reasonable expenses of any
special audit and "cold comfort letters required by or incident to such
performance), (iv) the fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Schedule E to the By-laws of the NASD, (v) liability insurance under
the
13
Securities Act, if the Company so desires such insurance, (vi) fees and expenses
of all attorneys, advisors, appraisers and other persons retained by the Company
or any subsidiary of the Company, (vii) internal expenses of the Company and the
subsidiaries of the Company (including, without limitation, all salaries and
expenses of officers and employees of the Company and & subsidiaries of the
Company performing legal or accounting duties), (viii) the expense of any annual
audit and (ix) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement. Anything herein to the contrary notwithstanding, all
underwriting and brokerage discounts and commissions shall be paid by the
Holders of Registrable Securities.
In connection with any Registration Statement hereunder or any amendment
thereto, the Company shall reimburse the Holders of the Registrable Securities
being registered in such registration for the reasonable out-of-pocket expenses
of such Holders incurred in connection therewith including, without limitation,
the reasonable fees and disbursements of not more than one counsel (together
with appropriate local counsel) chosen by the Holders of a majority of the
Registrable Securities to be included in such Registration Statement
2.8 Rule 144. The Company covenants that 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 SEC thereunder in a timely manner and, if at any
time the Company is not required to file such reports, it will, upon the
reasonable request of any Holder of Registrable Securities, make publicly
available other information so long as necessary to permit sales pursuant to
Rule 144 and Rule 144A under the Securities Act. The Company further covenants
that it will take such further action as any Holder of Registrable Securities
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
and Rule 144A under the Securities Act, as such Rules may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company will
deliver to such Holder a written statement as to whether it has complied with
such information requirements.
Section 3. INDEMNIFICATION
3.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Holder and each Person, if any, who controls any Holder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities, joint or several, to which such Holder or controlling Person may
become subject, under the Securities Act or otherwise, caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus or any amendment or supplement thereto
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each
14
Holder for any legal or other expenses reasonably incurred by such Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to the
Company by any Holder expressly for use therein; and provided further, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in the
Prospectus, if such untrue statement or alleged untrue statement or omission or
alleged omission is completely corrected in an amendment or supplement to the
prospectus and the seller of Registrable Securities thereafter fails to deliver
such Prospectus as so amended or supplemented prior to or concurrently with the
sale of Registrable Securities to the person asserting such loss, claim, damage,
or liability after the Company had furnished such seller with a sufficient
number of copies of the same or if the seller received written notice from the
Company of the existence of such untrue statement or alleged untrue statement or
omission or alleged omission and the seller continued to dispose of Registrable
Securities prior to the time of the receipt of either (A) an amended or
supplemented Prospectus which completely corrected such untrue statement or
omission or (B) a notice from the Company that the use of the existing
Prospectus may be resumed. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder or any Person
controlling such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act.
3.2 Indemnification by Holder of Registrable Securities. Each Holder
agrees, severally and not jointly, to indemnify and hold harmless the Company,
the Company's directors, the Company's officers who sign the Registration
Statement and any person controlling the Company to the same extent as the
foregoing indemnity from the Company to each Holder set forth in Section 3.1,
but only with reference to, and in conformity with, information relating to such
Holder furnished in writing by such Holder expressly for use in a Registration
Statement, the Prospectus or any preliminary prospectus, or any amendment or
supplement thereto and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any such director, officer or Person
controlling the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and shall survive the transfer
of such securities by such Holder.
3.3 Conduct of Indemnification Proceeding. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either Section
3.1 or Section 3.2, such Person, (the "indemnified party") shall promptly notify
the Person against whom such indemnity may be sought (the "indemnifying party")
in writing; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than as provided above. In case any such proceeding is instituted
against any indemnified party and it notifies the indemnifying party of the
15
commencement thereof, the indemnifying party shall have the right to retain
counsel satisfactory to such indemnified party to defend against such proceeding
and shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party has not retained counsel to defend such proceeding,
notwithstanding anything to the contrary in this Section 3. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by the Holders of a majority of the
Registrable Securities included in such Registration Statement in the case of
parties indemnified pursuant to Section 3.1 and by the Company in the case of
parties indemnified pursuant to Section 3.2. All fees and expenses which an
indemnified party is entitled to receive from an indemnifying party under this
Section 3 shall be reimbursed as they are incurred. No indemnifying party shall,
without prior written consent of the indemnified party (which shall not be
unreasonably withheld or delayed), effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
3.4 Contribution. If the indemnification provided for in Section 3.1 or
Section 3.2 is unavailable as a matter of law to an indemnified party in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under either such Section, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages, judgments or
liabilities in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the Holders of Registrable Securities
covered by the Registration Statement in question on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Company, or by the
Holders of Registrable Securities covered by the Registration Statement in
question and the parties relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 3 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or
16
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph of this Section
3.4 shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 3, no Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by such Holder and distributed to the public
were offered to the public exceeds the amount of any damages which such Holder
has otherwise been required to pay by reason of such untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
3.5 Other Indemnities. The obligations of the Company and of each of the
Holders under this Section 3 shall be in addition to any liability which the
Company or which any of the Holders may otherwise have.
Section 4. MISCELLANEOUS
4.1 Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement.
4.2 No Inconsistent Agreements. The Company shall not, after the date of
this Agreement, enter into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The Company will not enter into any agreement with respect to any of its
securities which will grant to any Person "piggyback" rights with respect to any
Registration Statement filed pursuant to Section 2.1 of this Agreement.
4.3 Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
prior written consent of Holders of at least a majority of the then outstanding
Registrable Securities. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence. The last sentence of the definition of
Registrable
17
Securities and this Section 4.3 may not be amended, modified or supplemented,
and waivers or consents to departures therefrom may not be given at any time.
4.4 Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in accordance with the
provisions of this Section 4.4, which address initially is, with respect to
each Holder, the address set forth on the signature page attached hereto;
and
(ii) if to the Company, 815 Matthews-Mint Hill Road, Matthews, North
Carolina 28105, Attention: Corporate Secretary, Telecopier No. (704)
847-1548 with a copy to Paul, Weiss, Rifkind, Wharton & Garrison, 1285
Avenue of the Americas, New York, New York 10019, Attention: Richard S.
Borisoff, Esq., Telecopier No. (212) 373-2523.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; three business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day courier; and when receipt is
acknowledged by the addressee, if telecopied.
4.5 Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Registrable Securities.
4.6 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
4.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
4.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
18
4.9 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
4.10 Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. This Agreement and the Purchase Agreement supersede all
prior agreements and understandings between the parties with respect to such
subject matter.
4.11 Attorneys' Fees. As between the parties to this Agreement, in any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys fees in addition to its
costs and expenses and any other available remedy.
4.12 Securities Held by the Company or Its Subsidiaries. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
by any of its Subsidiaries shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PCA INTERNATIONAL, INC.
By: /s/ Bruce Fisher
---------------------------------------
Name: Bruce Fisher
Title: Chief Financial Officer
Address:
815 Matthews-Mint Hill Road
Matthews, North Carolina 28105
Telecopy No. (704) 847-1548
Attention: Corporate Secretary
NATIONSBRIDGE, L.L.C.
By: /s/ Lynne Wertz
---------------------------------------
Name:
Title:
Address:
NationsBank Corporate Center
100 North Tryon Street, 7th Floor
Charlotte, North Carolina 28255
Telecopy No. (704) 388-9941
Attention: Lynne Wertz
NATIONSBANC MONTGOMERY SECURITIES, L.L.C.
By: /s/ Lynne Wertz
---------------------------------------
Name:
Title:
Address:
NationsBank Corporate Center
100 North Tryon Street, 7th Floor
Charlotte, North Carolina 28255
Telecopy No. (704) 388-9941
Attention: Lynne Wertz
THE CHASE MANHATTAN BANK
By: /s/ Kathryn A. Duncan
---------------------------------------
Name: Kathryn A. Duncan
Title: Vice President
Address:
270 Park Avenue, 4th Floor
New York, New York 10017
Telecopy No. (212) 972-0009
Attention: Kathryn Duncan
S-2