EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
FOR
COMMON STOCK
Dated March 17, 2000
by and among
FABRISTEEL HOLDINGS, INC.
CITICORP VENTURE CAPITAL, LTD.,
and
THE INVESTORS LISTED ON SCHEDULE A
REGISTRATION RIGHTS AGREEMENT FOR COMMON STOCK
This Registration Rights Agreement for Common Stock (the "Agreement")
is made and entered into March 17, 2000, by and among FabriSteel Holdings, Inc,
a Delaware corporation (the "Company"), Citicorp Venture Capital, Ltd., a New
York corporation ("CVC"), the individuals listed as "Continuing Investors" on
Schedule A hereto (collectively, the "Continuing Investors"), the individuals
listed as "Management Investors" on Schedule A hereto and the individuals who
join in the Securities Purchase and Holders Agreement (as hereinafter defined)
and this Agreement as Management Investors (collectively, the "Management
Investors") and the individuals and other entities listed as "Other Investors"
on Schedule A hereto (the "Other Investors"). As used herein, CVC, the
Continuing Investors, the Management Investors and the Other Investors are
sometimes referred to herein collectively as the "Investors" and each
individually as the "Investor"; and term "Company" shall mean the Company and
any of its successors.
This Agreement is made pursuant to the Securities Purchase and Holders
Agreement. In order to induce the Investors to enter into the Securities
Purchase and Holders Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the Rules
promulgated under the Exchange Act.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Class A Common Stock, par value $.01 per
share, of the Company, including shares of Class A Common Stock issuable upon
the conversion of shares of Class B Common Stock, par value $.01 per share, and
as adjusted for any stock dividend or distribution payable thereon or stock
split, reverse stock split, recapitalization, reclassification, reorganization,
exchange, subdivision or combination thereof.
"Demand Registration" has the meaning set forth is Section 4(a) of
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
- 2 -
"Prospectus" means the prospectus included in any Registration
Statement, 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 in such Prospectus.
"Registration Expenses" means the costs and expenses of all
registrations and qualifications under the Securities Act, and of all other
actions the Company is required to take in order to effect the registration of
Registrable Securities under the Securities Act pursuant to this Agreement
(including all federal and state registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company and the fees and
expenses of the Company's independent public accountants (including the expenses
of any special audit and "cold comfort" letters required by or incident to such
registration)) other than the costs and expenses of any Investors whose
Registrable Securities are to be registered pursuant to this Agreement
comprising underwriters' commissions, brokerage fees, transfer taxes or the fees
and expenses of any accountants or other representatives retained by any
Investor.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions 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 in such Registration
Statement.
"Registrable Securities" has the meaning set forth in Section 2 of
this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Securities Purchase and Holders Agreement" means the Securities
Purchase and Holders Agreement dated as of the date hereof among the Company,
CVC, the Continuing Investors and the other signatories thereto.
"Special Registration Statement" means (i) a registration statement on
Forms S-8 or S-4 or any similar or successor form or any other registration
statement relating to an exchange offer or an offering of securities solely to
the Company's employees or security holders or (ii) a registration statement
registering a Unit Offering.
"Unit Offering" means a public offering of a combination of debt and
equity securities of the Company in which (i) not more than 20% of the gross
proceeds received for the sale of such securities is attributed to such equity
securities, and (ii) after giving effect to such offering, the Company does not
have a class of equity securities required to be registered under the Exchange
Act.
"underwritten registration" or "underwritten offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
- 3 -
2. Registrable Securities. The securities entitled to the benefits of
this Agreement are the Registrable Securities. As used herein, "Registrable
Securities" means the shares of Common Stock that are issued (or issuable) and
outstanding on the date hereof and the shares of Common Stock that become issued
(or issuable) and outstanding after the date hereof; provided, however, that
shares of Common Stock issued to Management Investors which shares are subject
to the restrictions contained in Article VI of the Securities Purchase and
Holders Agreement shall be deemed to be Registrable Securities only to the
extent such shares are eligible for repurchase by the Company at the Repurchase
Price (as defined in the Securities Purchase and Holders Agreement) pursuant to
Section 6.3 of the Securities Purchase and Holders Agreement; and provided,
further, that each share of Common Stock shall cease to be a Registrable
Security when (i) it has been effectively registered under the Securities Act
and disposed of in accordance with the registration statement covering it; (ii)
it is distributed to the public pursuant to Rule 144 (or any similar provisions
then in force) under the Securities Act; or (iii) it has otherwise been
transferred and a new certificate or other evidence of ownership for it not
bearing or requiring a legend as set forth in Section 3.2 of the Securities
Purchase and Holders Agreement (or other legend of similar import) and not
subject to any stop transfer order has been delivered by or on behalf of the
Company and no other restriction on transfer exists under the Securities Act.
3. Incidental Registration.
(a) Right to Include Common Stock. If the Company at any time
proposes to register any of its Common Stock under the Securities Act (other
than on a Special Registration Statement), whether or not for sale for its own
account, it will each such time give at least 30 days prior written notice (the
"Notice") to all holders of Registrable Securities of its intention to issue its
Common Stock under the Securities Act and of such holders' rights under this
Section 3. Upon the written request of any such holders of Registrable
Securities made within 15 days of the date of the Notice (which request shall
specify the aggregate number of the Registrable Securities to be registered and
will also specify the intended method of disposition thereof), the Company will
effect the registration under the Securities Act of all Registrable Securities
which the Company has been so requested to register by the holders thereof (an
"Incidental Registration"), to the extent required to permit the public
disposition (in accordance with such intended methods thereof) of the
Registrable Securities to be so registered; provided, that (i) if, at any time
after giving written notice of its intention to register shares of Common Stock
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register the Company's Common Stock, the Company shall give written
notice of such determination to each holder of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith); (ii) if a registration
requested pursuant to this Section 3 shall involve an underwritten public
offering, any holder of Registrable Securities requesting to be included in such
registration may elect, in writing at least 30 days prior to the effective date
of the registration statement filed in connection with such registration, not to
register such securities in connection with such registration; and (iii) if, at
any time after the 180-day or shorter period specified in Section 3(b), the sale
of the securities has not been completed, the Company may
- 4 -
withdraw from the registration on a pro rata basis (based on the number of
Registrable Securities requested by each holder of Registrable Securities to be
so registered) the Registrable Securities which the Company has been requested
to register and which have not been sold.
(b) Priority in Incidental Registrations. If a registration
pursuant to Section 3(a) involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the total
number of shares of Common Stock to be included in such registration, including
the Registrable Securities requested to be included pursuant to this Section 3,
exceeds the maximum number of shares of Common Stock specified by the managing
underwriter that may be distributed without adversely affecting the price,
timing or distribution of such shares of Common Stock, then the Company shall
include in such registration only such maximum number of Registrable Securities
which, in the reasonable opinion of such underwriter or underwriters, can be
sold in the following order of priority: (i) first, all of the shares of Common
Stock that the Company proposes to sell for its own account, if any, (ii)
second, all of the shares of Common Stock being registered by holder(s) of
Registrable Securities pursuant to a Demand Registration (as hereinafter
defined), and (iii) third, the Registrable Securities of the holder(s) of
Registrable Securities requested to be included in such Incidental Registration.
To the extent that shares of Common Stock to be included in the Incidental
Registration must be allocated among the holders(s) of Registrable Securities
pursuant to clause (iii) above, such shares shall be allocated pro rata among
the holders(s) of Registrable Securities based on the number of shares of Common
Stock that such holders(s) of Registrable Securities shall have requested to be
included therein. Notwithstanding the foregoing, if an Incidental Registration
is an underwritten offering, the managing underwriter or underwriters may select
shares for inclusion, or exclude shares completely, in such Incidental
Registration on a basis other than a pro rata basis if, in the reasonable
opinion of such underwriter or underwriters, selection on such other basis, or
inclusion of such shares, would be material to the success of the offering.
(c) Expenses. The Company will pay all Registration Expenses in
connection with any registration of Registrable Securities requested pursuant to
this Section 3.
(d) Liability for Delay. The Company shall not be held
responsible for any delay in the filing or processing of a registration
statement which includes any Registrable Securities due to requests by holders
of Registrable Securities pursuant to this Section 3 nor for any delay in
requesting the effectiveness of such registration statement.
4. Demand Registration
(a) Right to Demand Registration. Subject to Section 4(b) below,
CVC shall be entitled to make a written request ("Demand Registration Request")
to the Company for registration with the Commission under and in accordance with
the provisions of the Securities Act of all or part of the Registrable
Securities owned by it (a "Demand Registration") (which Demand Registration
Request shall specify the intended number of Registrable Securities to be
disposed of by such holder and the intended method of disposition thereof);
provided, that the Company may, if the Board of Directors so determines in the
exercise
- 5 -
of its reasonable judgment that due to a pending or contemplated acquisition or
disposition or public offering it would be inadvisable to effect such Demand
Registration at such time, defer such Demand Registration for a single period
not to exceed 180 days. Within 10 days after receipt of the Demand Registration
Request, the Company will serve written notice (the "Notice") of such Demand
Registration Request to all holders of Registrable Securities and, subject to
paragraph (c) below, the Company will include in such registration all
Registrable Securities of such holders with respect to which the Company has
received written requests for inclusion therein from such holders within fifteen
(15) business days after the receipt by the applicable holder of the Notice. All
requests made pursuant to this paragraph 4(a) will specify the aggregate number
of the Registrable Securities to be registered and will also specify the
intended methods of disposition thereof.
(b) Number of Demand Registrations. CVC shall be entitled to make
one or more Demand Registration Requests at any time and from time to time. The
Registration Expenses shall be borne by the Company.
(c) Priority on Demand Registration. If any of the Registrable
Securities proposed to be registered pursuant to a Demand Registration are to be
sold in a firm commitment underwritten offering and the managing underwriter or
underwriters of a Demand Registration advise the Company and the holders of such
Registrable Securities in writing that in its or their reasonable opinion the
number of shares of Common Stock proposed to be sold in such Demand Registration
exceeds the maximum number of shares specified by the managing underwriter that
may be distributed without adversely affecting the price, timing or distribution
of the Common Stock, the Company shall include in such registration only such
maximum number of Registrable Securities which, in the reasonable opinion of
such underwriter or underwriters can be sold in the following order of priority:
(i) first, the Registrable Securities requested to be included in such Demand
Registration held by the party requesting such Demand Registration; (ii) second,
shares of Common Stock to be offered by the Company in such Demand Registration;
and (iii) third, shares of Common Stock held by other holders requested to be
included in such Demand Registration, provided that such amount shall be
allocated among such other holders on a pro rata basis based upon their
respective percentage of ownership of the total number of shares of Common Stock
then outstanding.
5. Registration Procedures. If and whenever the Company is required to
effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will, as expeditiously
as possible:
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Securities, and use its best efforts to cause
such registration statement to become effective; provided, however, that the
Company may discontinue any registration of its securities which is being
effected pursuant to Sections 3 or 4 herein at any time prior to the effective
date of the registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as
- 6 -
may be necessary to keep such registration statement effective for a period of
not less than 180 days or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been sold
(but not before the expiration of the applicable period referred to in Section
4(3) of the Securities Act and Rule 174 thereunder, if applicable) and comply
with the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
(c) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each such amendment and
supplement thereof (in each case including all exhibits), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each seller shall request, and do any and
all other acts and things which may be necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject or
subject itself to general taxation in any jurisdiction where it is not then so
subject;
(e) immediately notify each seller of any Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Act within the appropriate period
mentioned in clause (b) of this Section 5, of the Company becoming aware that
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and within ten
days prepare and furnish to all sellers a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) use its best efforts to list such Registrable Securities on
any securities exchange on which the Common Stock is then listed or Nasdaq if
the Common Stock is then quoted on Nasdaq, if such Registrable Securities are
not already so listed or quoted and if such listing is then permitted under the
rules of such exchange or Nasdaq, and provide an independent transfer agent and
registrar for such Registrable Securities covered by such registration statement
not later than the effective date of such registration statement;
- 7 -
(g) furnish to each seller of Registrable Securities covered by
such registration statement a signed counterpart, addressed to such seller (and
the underwriters, if any) of:
(i) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such registration involves
an underwritten public offering, dated the date of the closing under the
underwriting agreement), reasonably satisfactory in form and substance to the
sellers of not less than 50% of such Registrable Securities (and the managing
underwriter, if any); and
(ii) a "comfort" letter, dated the effective date of such
registration statement (or, if such registration involves an underwritten public
offering, dated the date of the closing under the underwriting agreement),
signed by the independent public accountants who have certified the Company's
financial statements included in such registration statement, covering such
matters with respect to such registration statement as are customarily covered
in accountants' letters delivered to the underwriters in underwritten offerings
of securities as may reasonably be requested by the sellers of not less than 50%
of such Registrable Securities (and the managing underwriter, if any); and
(h) make available for inspection by any seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter (individually, an "Inspector" and
collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility (collectively, the "Records"), and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement; provided that any Records that are designated
by the Company in writing as confidential shall be kept confidential by the
Inspectors unless (A) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (B) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or by any regulatory authority having
jurisdiction. Each Investor agrees that non-public information obtained by it as
a result of such Inspections shall be deemed confidential and acknowledges its
obligations under the Federal securities laws not to trade any securities of the
Company on the basis of material non-public information.
The Company may require each seller of Registrable Securities as to
which any registration is being effected promptly to furnish to the Company such
information regarding the distribution of such Registrable Securities as may be
legally required. Such information shall be furnished in writing and shall state
that it is being furnished for use in the registration statement.
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 clause (e) of this Section 5,
such holder will forthwith discontinue
- 8 -
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause (e) of this
Section 5, and, if so directed by the Company, such holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of the Company's notice. In the event
the Company shall give any such notice, the period mentioned in clause (b) of
this Section 5 shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to clause (e) of
this Section 5 and including the date when each seller of Registrable Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by clause (e) of this Section 5.
6. Indemnification.
(a) Indemnification by the Company. The Company hereby agrees to
indemnify and hold harmless each holder of Registrable Securities which shall
have been registered under the Securities Act, and such holder's officers,
directors and agents and each other Person, if any, who controls such holder
within the meaning of the Securities Act and each other Person (including
underwriters) who participates in the offering of such Registrable Securities
against any losses, claims, damages, liabilities, reasonable attorneys' fees,
costs or expenses (collectively, the "Damages"), joint or several, to which such
holder or controlling Person or participating Person may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact made by the Company or its agents
contained in any registration statement under which such Registrable Securities
are registered under the Securities Act, in any preliminary prospectus or final
prospectus contained therein, or in any amendment or supplement thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such holder of Registrable
Securities or such controlling Person or participating Person in connection with
investigating or defending any such Damages or proceeding; provided, however,
that the Company will not be liable in any such case to the extent that any such
Damages arise out of or are based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
said preliminary or final prospectus or said amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by such
holder or such controlling or participating Person, as the case may be,
specifically for use in the preparation thereof; or (ii) an untrue statement or
alleged untrue statement, omission or alleged omission in a prospectus if such
untrue statement or alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the prospectus which amendment or
supplement is delivered to such holder in a timely manner and such holder
thereafter fails to deliver such prospectus as so amended or supplemented prior
to or concurrently with the sale of such Registrable Securities to the Person
asserting such Damages.
(b) Indemnification by the Holders of Registrable Securities
Which Are Registered. It shall be a condition of the Company's obligations under
this Agreement to
- 9 -
effect any registration under the Securities Act that there shall have been
delivered to the Company an agreement or agreements duly executed by each holder
of Registrable Securities to be so registered, whereby such holder agrees to
indemnify and hold harmless the Company, its directors, officers and agents and
each other Person, if any, which controls the Company within the meaning of the
Securities Act against any Damages, joint or several, to which the Company, or
such other Person or such Person controlling the Company may become subject
under the Securities Act or otherwise, but only to the extent that such Damages
(or proceedings in respect thereof) arise out of or are based upon any untrue
statements or alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which such
Registrable Securities are registered under the Securities Act, in any
preliminary prospectus or final prospectus contained therein or in 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 not misleading, which, in each such
case, has been made in or omitted from such registration statement, said
preliminary or final prospectus or said amendment or supplement in reliance
upon, and in conformity with, written information furnished to the Company by
such holder of Registrable Securities specifically for use in the preparation
thereof. The Company shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above, with
respect to information furnished in writing by such Persons specifically for
inclusion in any prospectus or registration statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of the commencement of any action or proceeding involving a
claim referred to in the preceding Sections 6(a) and 6(b); and (ii) unless the
indemnified party has been advised by its counsel that a conflict of interest
exists between such indemnified and indemnifying parties under applicable
standards of professional responsibility, with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). No indemnifying party will consent to the entry
of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation; provided, however, that no indemnifying party will consent to the
entry of any judgment or enter into any settlement (other than for the payment
of money only) without the consent of the indemnified party (which consent will
not be unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of the claim, will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels.
- 10 -
(d) Contribution. If for any reason the indemnification provided
for in the preceding Sections 6(a) or 6(b) is unavailable to an indemnified
party in respect of any Damages referred to therein, the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such Damages in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnified party and the indemnifying
party, but also the relative fault of the indemnified party and the indemnifying
party, as well as any other relevant equitable considerations. The relative
fault of such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action; provided, however, that in no event shall the liability of
any selling holder of Registrable Securities hereunder be greater in amount than
the difference between the dollar amount of the proceeds received by such holder
upon the sale of the Registrable Securities giving rise to such contribution
obligation and all amounts previously contributed by such holder with respect to
such Damages. 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 fraudulent misrepresentation.
7. Hold-Back Agreements
(a) Restrictions on Public Sale by Holder of Registrable
Securities. Each holder of Registrable Securities whose Registrable Securities
are eligible for inclusion in a Registration Statement filed pursuant to
Sections 3 or 4 agrees, if requested by the managing underwriter or underwriters
in an underwritten offering of any Registrable Securities, not to effect any
public sale or distribution of Registrable Securities, including a sale pursuant
to Rule 144 (or any similar provision then in force) under the Securities Act
(except as part of such underwritten registration), during the 10-day period
prior to, and during the 180-day period (or such shorter period as may be agreed
to by the parties hereto) beginning on the effective date of such Registration
Statement, to the extent timely notified in writing by the Company or the
managing underwriter or underwriters.
The foregoing provisions 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 Registrable Securities (except as
part of such underwritten registration) during such period unless it has
provided 45 days prior written notice of such sale or distribution to the
managing underwriter or underwriter.
(b) Restrictions on Public Sale by the Company and Others. The
Company shall (i) not effect any public sale or distribution of any of its
Common Stock for its own account during the 10-day period prior to, and during
the 180-day period beginning on, the effective date of a Registration Statement
filed pursuant to Sections 3 or 4 (except as part of a Special Registration
Statement), and (ii) use reasonable efforts to cause each holder of Common
- 11 -
Stock purchased from the Company at any time after the date of this Agreement
(other than in a registered public offering) to agree not to effect any public
sale or distribution of any such securities during such period, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
underwritten registration, if permitted).
8. Underwritten Registration
If any of the Registrable Securities covered by any Incidental
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Company and, in the case of a Demand Registration
approved by CVC.
Notwithstanding anything herein to the contrary, no Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwritten arrangements approved by the Persons entitled hereunder to approve
such arrangement and (b) accurately completes and executes all questionnaires,
powers of attorney, indemnities, custody agreements, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
9. Miscellaneous
(a) Amendment and Modification. This Agreement may be amended or
modified, or any provision hereof may be waived, provided that such amendment or
waiver is set forth in a writing executed by (i) the Company, (ii) CVC (so long
as CVC and its Affiliates own in the aggregate at least 25% of the outstanding
Common Stock on a fully diluted basis), (iii) the holders of a majority of the
shares of the Registrable Securities held by Investors other than CVC and (iv)
in the case of any amendment which materially and adversely affects any
Investor, such Investor. No course of dealing between or among any persons
having any interest in this Agreement will be deemed effective to modify, amend
or discharge any part of this Agreement or any rights or obligations of any
person under or by reason of this Agreement.
(b) Survival of Representations and Warranties. All
representations, warranties, covenants and agreements set forth in this
Agreement will survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by an Investor or on its behalf.
(c) Successors and Assigns; Entire Agreement. This Agreement and
all of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. This Agreement set forth the entire
agreement and understandings among the parties as to the subject matter hereof
and merges and supersedes all prior discussions and understandings of any and
every nature among them.
(d) Separability. In the event that any provision of this
Agreement or the application of any provision hereof is declared to be illegal,
invalid or otherwise unenforceable by a court of competent jurisdiction, the
remainder of this Agreement shall not be
- 12 -
affected except to the extent necessary to delete such illegal, invalid or
unenforceable provision unless that provision held invalid shall substantially
impair the benefits of the remaining portions of this Agreement.
(e) Notices. All notices provided for or permitted hereunder
shall be made in writing by hand-delivery, registered or certified first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery to the
other party at the following addresses (or at such other address as shall be
given in writing by any party to the others):
If to the Company to:
FabriSteel Holdings, Inc.
22100 Trolley Industrial Drive
Taylor, Michigan 48180-1872
Attention: President
with required copies to:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Craig L. Godshall, Esq.
If to CVC, to:
Citicorp Venture Capital, Ltd.
399 Park Avenue, 14th Floor
New York, New York 10043
Attention: Charles Corpening
with a required copy to:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Craig L. Godshall, Esq.
If to an Investor, at the most current address given by such Investor
to the Company in accordance with this Section 10(e), which address
initially is, with respect to each Investor, the address set forth on
Schedule A hereto.
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage
- 13 -
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
(f) Governing Law. The validity, performance, construction and
effect of this Agreement shall be governed by and construed in accordance with
the internal law of Delaware, without giving effect to principles of conflicts
of law.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not constitute a part of this Agreement, nor shall
they affect their meaning, construction or effect.
(h) Counterparts. This Agreement may be executed in two or more
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 instrument.
(i) Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
(j) Termination. Unless sooner terminated in accordance with its
terms, this Agreement shall terminate on the fifteenth anniversary of the date
of this Agreement; provided that the indemnification rights and obligations set
forth in Section 6 hereof shall survive the termination of this Agreement.
(k) Remedies. In the event of a breach or a threatened breach by
any party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement, it being
agreed by the parties that the remedy at law, including monetary damages, for
breach of such provision will be inadequate compensation for any loss and that
any defense in any action for specific performance that a remedy at law would be
adequate is waived.
(l) Party No Longer Owning Securities. If a party hereto ceases
to own any Registrable Securities, such party will no longer be deemed to be an
Investor for purposes of this Agreement; provided that the indemnification
rights and obligations set forth in Section 6 hereof shall survive any such
cessation of ownership.
(m) Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
(n) No Effect on Employment. Nothing herein contained shall
confer on any Investor the right to remain in the employ of the Company or any
of its subsidiaries or Affiliates.
- 14 -
(o) Signatures. While there are signature pages attached to this
Agreement, this Agreement shall be binding upon each Investor whether or not any
such Investor has executed this Agreement.
[Remainder of Page Intentionally Left Blank]
- 15 -
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
FABRISTEEL HOLDINGS, INC.
By: /s/ Rex A. Ogg
-------------------------------------
Rex A. Ogg
Its: President
CITICORP VENTURE CAPITAL LTD.
By: /s/ Charles E. Corpening
-------------------------------------
Its: Vice President
MANAGEMENT INVESTORS:
/s/ Rex A. Ogg
-----------------------------------------
Rex A. Ogg
9255 Fellows Creek Drive
Plymouth, MI 48170
Social Security Number: ###-##-####
/s/ Mark J. MacGuidwin
-----------------------------------------
Mark J. MacGuidwin
385 Yarmouth Road
Bloomfield Hills, MI 48301
Social Security Number: ###-##-####
/s/ James B. Ross
-----------------------------------------
James B. Ross
3316 Summit Ridge Drive
Rochester Hills, MI 48306
Social Security Number: ###-##-####
/s/ David W. Sickels
-----------------------------------------
David W. Sickels
46069 Green Valley
- 16 -
Plymouth, MI 48170
Social Security Number: ###-##-####
/s/ John J. Vrana
-----------------------------------------
John J. Vrana
540 Essex Drive
Rochester Hills, MI 48307
Social Security Number: ###-##-####
/s/ Richard Puricelli
-----------------------------------------
Richard Puricelli
2750 Indian Mound Road South
Bloomfield Hills, MI 48301
Social Security Number: ###-##-####
CONTINUING INVESTORS:
Jerry H. Steward Children's Trust #1 UTA DTD 12-16-76
FBO Elizabeth H. Steward (EIN #38-636-4786)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
Jerry H. Steward Children's Trust #5 UTA DTD 12-16-76
FBO Eileen H. Steward (EIN #38-636-4774)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
- 17 -
Jerry H. Steward Children's Trust UTA #4 DTD 12-16-76
FBO Ellen H. Steward (EIN #38-636-4789)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
Jerry H. Steward Children's Trust #3 UTA DTD 12-16-76
FBO Jason H. Steward (EIN # 38-636-4791)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
Jerry H. Steward Children's Trust #2 UTA DTD 12-16-76
FBO Jeffery H. Steward (EIN #38-636-4788)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
Douglas A. Steward Revocable Living Trust Dated May
21, 1990, as Amended
/s/ Douglas A. Steward
-----------------------------------------
Douglas A. Steward, Co-Trustee
SS# ###-##-####
-----------------------------------------
Roxanne Steward, Co-Trustee
- 18 -
John H. Steward, II Revocable Living Trust, dated June 5,
1990
/s/ John H. Steward
-----------------------------------------
John H. Steward, II, Trustee
SS# ###-##-####
Jeffery H. Steward Revocable Living Trust dated May 16,
1991, as Amended
/s/ Jeffery H. Steward
-----------------------------------------
Jeffery H. Steward, Co-Trustee
SS# ###-##-####
/s/ Lisa G. Steward
-----------------------------------------
Lisa G. Steward, Co-Trustee
Jerry H. Steward Irrevocable Stock Trust #5 FBO
Eileen H. Steward-Llewellyn, dated May 15, 1990
(EIN #38-657-5883)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
Jerry H. Steward Irrevocable Stock Trust #4 FBO
Ellen H. Steward, dated May 15, 1990 (EIN #38-657-5881)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
- 19 -
Jerry H. Steward Irrevocable Stock Trust #3 FBO
Jason H. Steward, dated May 15, 1990 (EIN #38-657-5880)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
Jerry H. Steward Irrevocable Stock Trust #2 FBO
Elizabeth H. Garner, dated May 15, 1990
(EIN #38-657-5879)
-----------------------------------------
Key Trust Company, Co-Trustee
-----------------------------------------
Frank J. Dale, Co-Trustee
/s/ Margaret Ann Campbell
-----------------------------------------
Margaret Ann Campbell
SS# ###-##-####
Sallie E. Snyder Living Trust Agreement, dated October
4, 1989
/s/ Sallie E. Snyder
-----------------------------------------
Sallie E. Snyder, Trustee
SS# ###-##-####
- 20 -
/s/ Frances A. I. Knoop
-----------------------------------------
Frances A. I. Knoop
SS# ###-##-####
Mary E. Biddinger Living Trust Agreement dated
February 23, 1991
/s/ Mary E. Biddinger
-----------------------------------------
Mary E. Biddinger, Trustee
SS# ###-##-####
Katharine I. Campbell Living Trust
dated June 29, 1993 (EIN# 38-6708973)
/s/ Robert M. Campbell
-----------------------------------------
Robert M. Campbell, Co-Trustee
/s/ William Bradley
-----------------------------------------
Comerica Bank, Co-Trustee
Margaret H. Steward Living Trust, dated
December 14, 1966, and any amendments thereto
/s/ Margaret H. Steward
-----------------------------------------
Margaret H. Steward, sole Trustee
SS# ###-##-####
Jerry H. Steward Living Trust, dated December 14, 1966,
and any amendments thereto
/s/ Jerry H. Steward
-----------------------------------------
Jerry H. Steward, sole Trustee
SS# ###-##-####
- 21 -
OTHER INVESTORS
CCT PARTNERS, V, LP
By: /s/ Thomas H. Sanders
-------------------------------------
Name: Thomas H. Sanders
Title: Secretary of CCT 1998 Corporation, GP of
CCT Partner V,L.P.
63 BR PARTNERSHIP
By: /s/ James A. Urry
-------------------------------------
Name: James A. Urry
Title: Attorney-In-Fact
/s/ Michael A. Delaney
-----------------------------------------
Michael A. Delaney
/s/ Charles E. Corpening
-----------------------------------------
Charles E. Corpening
/s/ David F. Thomas
-----------------------------------------
David F. Thomas
/s/ Richard M. Cashin
-----------------------------------------
Richard M. Cashin
- 22 -
ALCHEMY L.P.
By:/s/ [illegible]
--------------------------------------
Name: [illegible]
Title: General Partner
Thomas F. McWilliams Flint Trust dated October 27, 1998
/s/ Jeanne Blastberg
-----------------------------------------
Jeanne Blastberg, Trustee
/s/ James Urry
-----------------------------------------
James Urry
/s/ Byron Knief
-----------------------------------------
Byron Knief
/s/ Joseph M. Silvestri
-----------------------------------------
Joseph M. Silvestri
/s/ John Weber
-----------------------------------------
John Weber
/s/ M. Saleem Muqaddam
-----------------------------------------
M. Saleem Muqaddam
- 23 -
/s/ Richard E. Mayberry
-----------------------------------------
Richard E. Mayberry
BG PARTNER LLP
By: /s/ Paul C. Schorr IV
-------------------------------------
Name: Paul C. Schorr IV
Title: General Partner and Authorized Signatory
/s/ Ian D. Highet
-----------------------------------------
Ian D. Highet
- 24 -
SCHEDULE A
----------
Name of Continuing Investor Address
- --------------------------- -------
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Children's
Trust UTA DTD 12-16-76 FBO Elizabeth H. Steward Cleveland, Ohio 14114
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Children's
Trust UTA DTD 12-16-76 FBO Eileen H. Steward Cleveland, Ohio 14114
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Children's
Trust UTA DTD 12-16-76 FBO Ellen H. Steward Cleveland, Ohio 14114
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Children's
Trust UTA DTD 12-16-76 FBO Jason H. Steward Cleveland, Ohio 14114
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Children's
Trust UTA DTD 12-16-76 FBO Jeffery H. Steward Cleveland, Ohio 14114
Douglas A. Steward, Co-Trustee of the 30400 Bristol Lane
Douglas A. Steward Revocable Living Trust
Dated May 21, 1990, as Amended Bingham Farms, MI 48025
John H. Steward, II, Trustee of the 1030 Martin Place
John H. Steward, II Revocable Living Trust
Dated June 5, 1990 Ann Arbor, MI 48104
Jeffery H. Steward, Co-Trustee of the 274 Scarlot Drive
Jeffery H. Steward Revocable Living Trust
dated May 16, 1991, as Amended Canton, MI 48187
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Irrevocable
Stock Trust FBO Eileen H. Steward-Llewellyn, Cleveland, Ohio 14114
dated May 15, 1990
- 25 -
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Irrevocable
Stock Trust FBO Ellen H. Steward, dated May Cleveland, Ohio 14114
15, 1990
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Irrevocable
Stock Trust FBO Jason H. Steward, dated May Cleveland, Ohio 14114
15, 1990
Key Trust Company and Frank J. Dale, Key Trust Company
Co-Trustees of the Jerry H. Steward Irrevocable
Stock Trust FBO Elizabeth H. Garner dated May Cleveland, Ohio 14114
15, 1990
Margaret Ann Campbell 961 South Highland
Dearborn, MI 48124
Sallie F. Snyder, Trustee of the 5137 Wood View Court
Sallie F. Snyder Living Trust Agreement, Dearborn, MI 48126
dated October 4, 1989
Frances A.I. Knoop 811 Mohaw
Dearborn, MI 48124
Mary E. Biddinger, Trustee of the 8134 Crossgate Court North
Mary E. Biddinger Living Trust Agreement Dublin, Ohio 43017
dated February 23, 1991
Robert M. Campbell and Comerica Bank,
Co-Trustees of the Katharine I. Campbell
Living Trust dated June 29, 1993
Margaret H. Steward, Sole Trustee of the 961 South Highland
Margaret H. Steward Living Trust, dated Dearborn, MI 48124
December 14, 1966, and any amendments thereto
Jerry H. Steward, Sole Trustee of the 5104 Woodlands Lane
Jerry H. Steward Living Trust, dated Bloomfield Hills, MI 48302
December 14, 1966, and any amendments thereto
- 26 -
Name of Management Investor Address
- ----------------------------------------------- ---------------------------
Rex A. Ogg 9255 Fellows Creek Drive
Plymouth, MI 48170
Mark J. MacGuidwin 385 Yarmouth Road
Bloomfield Hills, MI 48301
James B. Ross 3316 Summit Ridge Drive
Rochestor Hills, MI 48306
David W. Sickels 46069 Green Valley
Plymouth, MI 48170
John J. Vrana 540 Essex Drive
Rochester Hills, MI 48307
Richard Puricelli
Name of Other Investor Address
- ----------------------------------------------- ---------------------------
CCT Partners V, LP
Michael A. Delaney
Charles E. Corpening
63 BR Partnership
David F. Thomas
Richard M. Cashin
Alchemy L.P.
Jeanne Blastberg, Trustee of the Thomas F.
McWilliams Flint Trust dated 10/27/98
James Urry
Byron Knief
Joseph M. Silvestri
- 27 -
John Weber
M. Saleem Muqaddam
Richard E. Mayberry
BG Partner LLP
Ian D. Highet
- 28 -