Exhibit 4.2


 


SHAREHOLDERS’ AGREEMENT


 


DATED AS OF


 


NOVEMBER 10, 2006


 


AMONG


 


GPS CCMP ACQUISITION CORP.


 


CCMP CAPITAL INVESTORS II, L.P.


 


CCMP CAPITAL INVESTORS (CAYMAN) II, L.P.


 


ASIA OPPORTUNITY FUND II, L.P.


 


AOF II EMPLOYEE CO-INVEST FUND, L.P.


 


CCMP GENERAC CO-INVEST, L.P.


 


THE MANAGEMENT SHAREHOLDERS PARTY HERETO


 


AND


 


THE OTHER PARTIES HERETO


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1
           DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2
           CORPORATE GOVERNANCE

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
   

  	
  Board of Directors

  	
   

  	
  10

  
	
  Section 2.02

  	
   

  	
  Voting Agreement

  	
   

  	
  11

  
	
  Section 2.03

  	
   

  	
  Committees

  	
   

  	
  11

  
	
  Section 2.04

  	
   

  	
  Chairman

  	
   

  	
  11

  
	
  Section 2.05

  	
   

  	
  Payments to Directors; Reimbursements

  	
   

  	
  12

  
	
  Section 2.06

  	
   

  	
  Competitive Opportunity

  	
   

  	
  12

  
	
  Section 2.07

  	
   

  	
  Notice of Meetings

  	
   

  	
  12

  
	
  Section 2.08

  	
   

  	
  Subsidiary Directors

  	
   

  	
  12

  
	
  Section 2.09

  	
   

  	
  Termination Upon IPO

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3
           RESTRICTIONS ON TRANSFER

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
   

  	
  General Restrictions on Transfer

  	
   

  	
  12

  
	
  Section 3.02

  	
   

  	
  Restrictions on Transfer by Management Shareholders

  	
   

  	
  13

  
	
  Section 3.03

  	
   

  	
  Legends

  	
   

  	
  13

  
	
  Section 3.04

  	
   

  	
  Permitted Transferees

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4
           TAG-ALONG RIGHTS; DRAG-ALONG
  RIGHTS; PREEMPTIVE RIGHTS

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
   

  	
  Tag-Along Rights

  	
   

  	
  14

  
	
  Section 4.02

  	
   

  	
  Drag-Along Rights

  	
   

  	
  16

  
	
  Section 4.03

  	
   

  	
  Additional Provisions Related to Tag-Along Sales and
  Drag-Along Sales

  	
   

  	
  18

  
	
  Section 4.04

  	
   

  	
  Preemptive Rights

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5
           REPURCHASE RIGHTS

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01

  	
   

  	
  Repurchase Rights upon Termination

  	
   

  	
  22

  
	
  Section 5.02

  	
   

  	
  Termination Pricing and Payment Terms

  	
   

  	
  22

  
	
  Section 5.03

  	
   

  	
  Repurchase Right Upon Breach of Restrictive Covenant
  Agreement

  	
   

  	
  24

  
	
  Section 5.04

  	
   

  	
  Termination of Repurchase Right

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6
           REGISTRATION RIGHTS

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01

  	
   

  	
  Demand Registration

  	
   

  	
  25

  
	
  Section 6.02

  	
   

  	
  Piggyback Registration

  	
   

  	
  27

  
	
  Section 6.03

  	
   

  	
  Shelf Registrations

  	
   

  	
  29

  
	
  Section 6.04

  	
   

  	
  Lock-Up Agreements

  	
   

  	
  29

  
	
  Section 6.05

  	
   

  	
  Registration Procedures

  	
   

  	
  29

  
	
  Section 6.06

  	
   

  	
  Indemnification by the Company

  	
   

  	
  32

  
	
  Section 6.07

  	
   

  	
  Indemnification by the Participating Investors

  	
   

  	
  33

  
	
  Section 6.08

  	
   

  	
  Conduct of Indemnification Proceedings

  	
   

  	
  33

  
	
  Section 6.09

  	
   

  	
  Contribution

  	
   

  	
  34

  



 


i

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.10

  	
   

  	
  Cooperation by the Company

  	
   

  	
  35

  
	
  Section 6.11

  	
   

  	
  Restriction on Company Grants of Registration Rights

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7
           CERTAIN COVENANTS AND
  AGREEMENTS

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
   

  	
  Confidentiality

  	
   

  	
  35

  
	
  Section 7.02

  	
   

  	
  Conflicting Agreements

  	
   

  	
  36

  
	
  Section 7.03

  	
   

  	
  Information Rights

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8
           MISCELLANEOUS

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01

  	
   

  	
  CCMP Representative

  	
   

  	
  37

  
	
  Section 8.02

  	
   

  	
  Binding Effect; Assignability; Benefit

  	
   

  	
  38

  
	
  Section 8.03

  	
   

  	
  Legal Representation for Management Shareholders

  	
   

  	
  38

  
	
  Section 8.04

  	
   

  	
  Notices

  	
   

  	
  38

  
	
  Section 8.05

  	
   

  	
  Waiver; Amendment

  	
   

  	
  39

  
	
  Section 8.06

  	
   

  	
  Non-Recourse

  	
   

  	
  39

  
	
  Section 8.07

  	
   

  	
  Governing Law; Venue

  	
   

  	
  40

  
	
  Section 8.08

  	
   

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  40

  
	
  Section 8.09

  	
   

  	
  Specific Enforcement; Cumulative Remedies

  	
   

  	
  40

  
	
  Section 8.10

  	
   

  	
  Entire Agreement

  	
   

  	
  40

  
	
  Section 8.11

  	
   

  	
  Severability

  	
   

  	
  40

  
	
  Section 8.12

  	
   

  	
  Aggregation of Company Equity Securities

  	
   

  	
  41

  
	
  Section 8.13

  	
   

  	
  Reimbursement of Expenses

  	
   

  	
  41

  
	
  Section 8.14

  	
   

  	
  Counterparts;
  Effectiveness

  	
   

  	
  41

  



 


ii





















 


SHAREHOLDERS’ AGREEMENT


 


THIS SHAREHOLDERS’ AGREEMENT (this “Agreement”), dated as of November 10,
2006, is entered into among:


 


i.                                        GPS CCMP
ACQUISITION CORP., a Delaware corporation (the “Company”),


 


ii.                                     CCMP CAPITAL
INVESTORS II, L.P. (“Capital
Investors”), CCMP CAPITAL INVESTORS (CAYMAN), L.P. (“Cayman Capital Investors”),
ASIA OPPORTUNITY FUND II, L.P. (“Asia Fund”), AOF II EMPLOYEE CO-INVEST FUND,
L.P. (“AOF”), and CCMP GENERAC
CO-INVEST, L.P. (collectively, the “CCMP Funds” and, together with each of their
Sponsor Permitted Transferees (as defined in Section 1.01 below),
the “Sponsors”),
and


 


iii.                                  Each Person
listed as a “management
shareholder” on the signature pages hereto and each of
their Permitted Transferees who, from time to time, executes and delivers a
Joinder Agreement, substantially as set forth on Exhibit A hereto
(a “Joinder Agreement”)
after the date hereof (each, a “Management Shareholder,”
and collectively, the “Management
Shareholders”).


 


RECITALS


 


WHEREAS, on the date hereof, the CCMP Funds have subscribed for,
purchased and acquired Class B Common Shares from the Company pursuant to
a certain Subscription and Stock Purchase Agreement, dated as of the date
hereof; and


 


WHEREAS, on the date hereof, the Management Shareholders have
subscribed for, purchased and acquired (a) Class A Common Shares
pursuant to one or more Restricted Stock Agreements, dated as of the date
hereof, between such Management Shareholders and the Company, and (b) Class B
Common Shares pursuant to a certain Management Subscription and Stock Purchase
Agreement, dated as of the date hereof, among the Management Shareholders and
the Company; and


 


WHEREAS, the parties hereto desire to enter into this Agreement to
govern certain of their rights, duties and obligations with respect to the
ownership of Company Equity Securities.


 


NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:


 


ARTICLE 1


 


DEFINITIONS


 


SECTION 1.01                    Definitions.


 


(a)                                  The following
terms, as used herein, have the following meanings:


 


“Advisory
Services and Monitoring Agreement” means that certain Advisory
Services and Monitoring Agreement, dated as of November 10, 2006, by and
among the Company, Generac Power Systems, Inc., CCMP Capital Advisors,
LLC, CCMP Capital Asia Pte. Ltd. and CCMP Capital Asia Consulting Company Ltd.
(as such agreement may be amended, modified or supplemented from time to time).


 

















 


“Affiliate”
means, with respect to any Person, any other Person who, directly or
indirectly, controls such first Person or is controlled by said Person or is
under common control with said Person, where “control” means the power and
ability to direct, directly or indirectly, or share equally in or cause the
direction of, the management and/or policies of a Person, whether through ownership
of voting shares or other equivalent interests of the controlled Person, by
contract (including proxy) or otherwise.


 


“Aggregate
Ownership” means, with respect to any Management Shareholder or
Sponsor, as the case may be, the total number of Company Equity Securities or
shares of a specific class of Company Equity Securities owned by such
Management Shareholder or Sponsor, as the case may be, and its Permitted
Transferees (in the case of any Management Shareholder) or Sponsor Permitted
Transferees (in the case of any Sponsor).


 


“Board”
means the Board of Directors of the Company.


 


“Business”
means, with respect to the Company and its Subsidiaries, the manufacturing,
marketing, selling and distributing of stand-by power products.


 


“Business Day”
means any day except a Saturday, Sunday or other day on which commercial banks
in New York City are authorized or required by applicable law to close.


 


“Call Period”
means, (a) with respect to the exercise of repurchase rights following a
Terminated Management Shareholder’s termination of employment without Cause or
for Good Reason, 190 days following the related Termination Date, and (b) in
all other cases, 60 days following the related Termination Date.


 


“Cause”
with respect to any Management Shareholder who is an employee of the Company,
or any of its Subsidiaries, has the meaning ascribed to such term in such
Management Shareholder’s employment or severance agreement, or if such
Management Shareholder is not a party to an employment or severance agreement or
“Cause”
is not defined therein, “Cause”
means:


 


(i)                                     the willful and continued failure by a Management
Shareholder
substantially to perform his or her duties (other than such failure resulting
from his or her “total disability” (as defined in the Generac Power Systems, Inc.
Long Term Disability Plan) or from termination by such Management
Shareholder for Good
Reason), after a written demand for substantial performance is delivered to
such Management Shareholder that specifically identifies the manner in which such Management
Shareholder has not substantially performed his duties, and such Management
Shareholder has not remedied such failure within a reasonable time after receipt of
such written notice (it being agreed that for purposes of this paragraph, no
act, or failure to act, on a Management Shareholder’s part will be deemed “willful” unless done,
or omitted to be done, by such Management Shareholder not in good faith and without reasonable
belief that his or her action or omission was in the best interest of the
Company);


 


(ii)                                  such Management
Shareholder’s gross negligence or willful misconduct in the performance of his
or her duties as an employee of the Company;


 


(iii)                               such Management
Shareholder’s commission of fraud, embezzlement, misappropriation of funds,
breach of fiduciary duty or a material act of dishonesty against the Company;


 


(iv)                              the indictment
of such Management Shareholder for a felony; or


 


2

















 


(v)                                 the drug
addiction or habitual intoxication of such Management Shareholder that
adversely effects such Management Shareholder’s job performance and duties
hereunder, or the reputation or best interests of the Company.


 


“Change of
Control” means (a) any transaction or series of related
transactions, whether or not the Company is a party thereto, in which, after
giving effect to such transaction or transactions, the Company Equity
Securities representing in excess of fifty percent (50%) of the voting power of
the Company are owned directly, or indirectly through one or more entities, by
any “person” or “group” (as such terms are used in Section 13(d) of
the Exchange Act) of Persons, other than one or more Sponsors or a “group” in which a Sponsor is a member, or (b) a
sale, lease or other disposition of all or substantially all of the assets of
the Company and its Subsidiaries on a consolidated basis (including securities
of the Company’s directly or indirectly owned Subsidiaries (if any)).


 


“Class A
Common Shares” means shares of Class A Nonvoting Common
Stock of the Company, par value $0.01 per share.


 


“Class B
Common Shares” means shares of Class B Voting Common Stock
of the Company, par value $0.01 per share.


 


“Closing”
means the closing of the purchase of the Company Equity Securities by the Sponsors
and the Management Shareholders on November 10, 2006.


 


“Common Shares”
means the Class A Common Shares and the Class B Common Shares, and
any capital stock or other equity Securities of the Company into which such
Common Shares may thereafter be converted, changed, reclassified or exchanged.


 


“Company Equity
Securities” means the Common Shares and any other securities
convertible into or exchangeable or exercisable for, or options, warrants or
other rights to acquire, Common Shares or any other equity or equity-linked
security issued by the Company; provided that
solely with respect to Sections 4.04 (Preemptive Rights) and 8.05
(Waivers; Amendments), Company Equity Securities of a Management Shareholder
shall exclude any unvested Class A Common Shares.  With respect to any other class or additional
shares of Company Equity Securities that may be issued and outstanding from
time to time, the Board shall reasonably determine the equivalent number of
Company Equity Securities represented by such shares.


 


“Distributions” means
all distributions made by the Company to holders of Common Shares, whether in
cash, property, or securities of the Company or its Subsidiaries and whether by
dividend, Liquidating distributions, or otherwise; provided that none of
the following events shall be considered a Distribution: (i) any
redemption or repurchase or acquisition by the Company for value of any share
or shares of its capital stock held by a present or former employee, director
or consultant of the Company or any Subsidiary pursuant to a restricted stock
agreement, stock repurchase agreement, stock option agreement, stockholder
agreement (including this Agreement), management agreement or other repurchase
agreement, arrangement, option or obligation approved by the Board; or (ii) any
recapitalization, subdivision (including stock dividends and stock splits),
combination (including reverse stock splits) or exchange of Common Shares.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.


 


“Fair Market
Value” means, with respect to any of the Company Equity
Securities as of any date of determination:


 


3

















 


(a)                                  in the event
that such Company Equity Securities are listed on an established U.S. exchange
or through the NASDAQ National Market or any established over-the-counter
trading system, the average of the closing prices of such Company Equity
Securities on such exchange if listed or, if not so listed, the average bid and
asked price of such Company Equity Securities reported on the NASDAQ National
Market or any established over-the-counter trading system on which prices for
such Company Equity Securities are quoted, in each case, for a period of twenty
trading days prior to such date of determination, and


 


(b)                                 in the event
that such Company Equity Securities are not listed on an established U.S.
exchange or through the NASDAQ National Market or any established
over-the-counter trading system, the fair market value of such Company Equity
Securities as determined by the Board in good faith.  Notwithstanding the foregoing with respect to
this clause (b), in the event a Management Shareholder shall disagree in
writing with any such determination by the Board (pursuant to the provisions of
Section 5.02(c)) in connection with the Company’s exercise of its
repurchase rights pursuant to Article V, the Fair Market Value of the
Company Equity Securities held by such Management Shareholder shall be as
determined pursuant to the provisions of Section 5.02(c).  The Board’s determination of Fair Market
Value shall be based on the following methodology (such methodology, the “Valuation Methodology”):


 


1.                                        the Fair Market
Value of a Class B Common Share shall be an amount equal to the Unreturned
Paid in Capital per Class B Common Share plus
a pro rata share (based upon the number of shares of Class B Common Stock
then outstanding) of the Total Equity Value of the Company, after reduction for
the aggregate Unreturned Paid-in Capital in respect of all Class B Common
Shares then outstanding, equal to the sum of (i) 88% plus (ii) a percentage equal to the
product of (A) 12% multiplied by
(B) one minus a fraction,
the numerator of which shall be the number of issued and outstanding Class A
Common Shares that are then vested and not subject to forfeiture, and the
denominator of which shall be 9,350.0098; and


 


2.                                        the Fair Market
Value of a Class A Common Share shall be an amount equal to the product of
(1) the Total Equity Value of the Company, after reduction for the
aggregate Unreturned Paid-in Capital in respect of all Class B Common
Shares then outstanding, multiplied by
(2) a percentage equal to 12% multiplied
by (2) a fraction, the numerator of which shall be the number
of issued and outstanding Class A Common Shares that are then vested and
not subject to forfeiture, and the denominator of which shall be 9,350.0098.


 


The “Total Equity Value”
shall be equal to the aggregate value, as determined in good faith by the
Board, that would be available with respect to all Company Equity Securities as
a group, including, without limitation, the Class A Common Shares and the Class B
Common Shares, in the event of a sale of all of the outstanding equity
securities of the Company to a Third Party, assuming an assumption by the
purchaser of all indebtedness of the Company and its Subsidiaries as of the
date of determination, taking into account valuation methodologies commonly
employed by financial buyers.


 


“FMV Calculation
Date” means, with respect to (i) the application of the
provisions of Section 5.01 and 5.02 to a Terminated
Management Shareholder, the date of delivery of any Call Notice delivered with
respect to the Termination Securities of such Terminated Management Shareholder
and (ii) the application of the provisions of Section 5.03 to
a Management Shareholder, the date of delivery of any 


 


4

















 


repurchase notice delivered with respect to the
Company Equity Securities of such Management Shareholder.


 


“Good Reason”,
with respect to any Management Shareholder who is an employee of the Company or
any of its Subsidiaries, has the meaning ascribed to such term in such
Management Shareholder’s employment or severance agreement, or, if such
Management Shareholder is not a party to an employment or severance agreement
or “Good Reason”
is not defined therein, “Good
Reason” means:


 


(i)                                     a material
reduction in the base salary of such Management Shareholder;


 


(ii)                               a material
diminution in such Management Shareholder’s duties or responsibilities not
cured by the Company within 20 days after written notice to the Company; or


 


(iii)                            a requirement
by the Company that such Management Shareholder be based in an office that is
located more then 50 miles from such Management Shareholder’s principal place
of employment as of the Effective Date.


 


“Governmental
Authority” means any federal, state, local or foreign
governmental authority, department, commission, board, bureau, agency, court,
instrumentality or judicial or regulatory body or entity.


 


“Investors”
means, collectively, the Sponsors and the Management Shareholders.


 


“IPO”
means the initial Public Offering registered on Form S-1 (or any successor
form under the Securities Act).


 


“Liquidation” means
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, other than any dissolution, liquidation or winding up in connection
with any reincorporation of the Company in another jurisdiction.  Liquidating shall have a correlative meaning.


 


“Management
Subscription Agreement” means that certain Management
Subscription Agreement dated as of the date hereof by and among the Company and
the Management Shareholders that are the signatories to this Agreement on the
date hereof.


 


“Management Class A
Shares Agreement”  means, with respect to a Management Shareholder, that
certain Restricted Stock Agreement, dated as of the date hereof, by and between
the Company and such Management Shareholder with respect to the purchase of Class A
Common Shares by such Management Shareholder.


 


“NASD”
means the National Association of Securities Dealers.


 


“Paid-in Capital”
means, with respect to any Class B Common Shares, as of any particular
date, the amount originally paid for such share when issued.


 


“Permitted
Transferee” means, with respect to any Management Shareholder, (i) such
Management Shareholder’s spouse, or any of such Management Shareholder’s lineal
descendants, siblings or parents (collectively, “Relatives”); (ii) any executor,
administrator or testamentary trustee of such Management Shareholder’s estate
if such Management Shareholder dies; (iii) any transferee receiving
Company Equity Securities of such Management Shareholder by will, intestacy
laws or the laws of descent or survivorship; and (iv) any trustee of a
trust (including an inter vivos trust) of which there are 


 


5

















 


no principal beneficiaries other than such
Management Shareholder or one or more Relatives of such Management Shareholder
or one or more lineal descendents of siblings of such Management Shareholder.


 


“Person”
means an individual, corporation, limited liability company, partnership,
association, trust or other entity or organization, including a Governmental
Authority.


 


“Public Offering”
means an underwritten public offering of Common Shares pursuant to an effective
registration statement under the Securities Act, other than pursuant to a
registration statement on Form S-4 or Form S-8 or any similar or
successor form.


 


“Registrable
Securities” means (i) Class A Common Shares, (ii) Class A
Common Shares issuable upon conversion of shares of Class B Common, (iii) Class A
Common Shares issuable upon exercise, conversion or exchange of any option,
warrant or other security of the Company and (iv) Class A Common
Shares directly or indirectly issued or issuable with respect to the securities
referred to in clauses (i), (ii) or (iii) above by way of share
dividend or share split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization; provided that Registrable Securities shall
not include:  (A) any shares (x) the
sale of which has been registered pursuant to the Securities Act and which
shares have been sold pursuant to such registration, except as otherwise
provided in clause (z) of this proviso, (y) which have been sold
pursuant to Rule 144 or Rule 145, or (z) which are registered
for resale pursuant to an effective registration statement on Form S-8 (or
any successor or similar form) (provided
that, with respect to shares of Common Stock registered on a Form S-8, if
the holder of such shares is requested to become subject to any lockup
agreement pursuant to Section 6.04 with respect to a particular
registration as to which it otherwise would have been able to participate but
for this clause (z), then such shares registered on Form S-8 shall be
deemed Registrable Securities with respect to such registration), or (B) any
unvested Class A Common Shares or any other unvested shares of the type
referred to in clauses (i), (ii), (iii) or (iv) above; and provided, further,
that any Company Equity Securities held by any Investor (and its Permitted
Transferees or Sponsor Permitted Transferees (as applicable)) which, together
with all other Company Equity Securities held by such Investor (and its
Permitted Transferees or Sponsor Permitted Transferees (as applicable)),
constitute less than 1% of the fully-diluted capital stock of the Company,
shall in no event constitute Registrable Securities; and provided, further,
that for the avoidance of doubt, all Registrable Securities remain subject to Article 5
of this Agreement.


 


“Registration
Expenses” means any and all expenses incident to the performance
of or compliance with any registration or marketing of securities, including
all (i) registration and filing fees, and all other fees and expenses
payable in connection with the listing of securities on any securities exchange
or automated interdealer quotation system, (ii) fees and expenses of
compliance with any securities or “blue sky”
laws (including reasonable fees and disbursements of counsel in connection with
“blue sky” qualifications of the
securities registered), (iii) expenses in connection with the preparation,
printing, mailing and delivery of any registration statements, prospectuses and
other documents in connection therewith and any amendments or supplements
thereto, (iv) security engraving and printing expenses, (v) internal
expenses of the Company (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties), (vi) reasonable
fees and disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by the Company
(including the expenses relating to any comfort letters or costs associated
with the delivery by independent certified public accountants of any comfort
letters to be provided pursuant to Section 6.04(h) hereof), (vii) reasonable
fees and expenses of any special experts retained by the Company in connection
with such registration, (viii) reasonable fees and out-of-pocket expenses
of counsel only to the Sponsors participating in the offering selected by the
Sponsors holding the majority of the Registrable Securities to be sold for the
account of all Investors in the offering, (ix) fees and expenses in
connection with any review by the NASD of the underwriting arrangements or
other 


 


6

















 


terms of the offering, and all fees and expenses of
any “qualified independent underwriter”
or other independent appraiser participating in any offering pursuant to
section 3 of Schedule E to the Bylaws of the NASD, including the fees and
expenses of any counsel thereto, (x) fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but
excluding any underwriting fees, discounts and commissions attributable to the
sale of Registrable Securities, (xi) costs of printing and producing any
agreements among underwriters, underwriting agreements, any “blue sky” or legal investment memoranda
and any selling agreements and other documents in connection with the offering,
sale or delivery of the Registrable Securities, (xii) transfer agents’ and
registrars’ fees and expenses and the fees and expenses of any other agent or
trustee appointed in connection with such offering, (xiii) expenses relating to
any analyst or investor presentations or any “road
shows” undertaken in connection with the registration, marketing or
selling of the Registrable Securities, (xiv) fees and expenses payable in
connection with any ratings of the Registrable Securities, including expenses
relating to any presentations to rating agencies, and (xv) all other costs and
expenses incurred by the Company or its officers in connection with their
compliance with Article 6 hereof.


 


“Rule 144”
means Rule 144 (or any successor provision) under the Securities Act.


 


“Rule 145”
means Rule 145 (or any successor provision) under 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 promulgated thereunder.


 


“Sponsor
Permitted Transferee” with respect to any Sponsor, an Affiliate
of such Sponsor; provided that
such transferee shall agree in writing with the Parties to be bound by, and to
comply with, all applicable provisions of, and to be deemed to be a Sponsor for
purposes of, this Agreement.  For the
avoidance of doubt, a transferee of Common Shares subsequent to an IPO may, but
shall not be required to, agree in writing with the Parties to be bound by, and
to comply with, all applicable provisions of this Agreement.


 


“Subsidiary”
means, with respect to any specified Person, any other Person in which such specified
Person, directly or indirectly through one or more Affiliates or otherwise,
beneficially owns at least fifty percent (50%) of either the ownership interest
(determined by equity or economic interests) in, or the voting control of, such
other Person.


 


“Tag-Along Pro
Rata Share” means, with respect to a Tag-Along Seller or Tagging
Person, as the case may be, a number of shares of a specified class of Offered
Securities equal to the product of (i) the aggregate number of shares of
such specified class that the prospective purchaser in a Tag-Along Sale is
willing to purchase, multiplied by
(ii) a fraction, the numerator of which is the number of shares owned by
such Tag-Along Seller or Tagging Person, as the case may be, and proposed to be
included in such Tag-Along Sale in accordance with Section 4.01(b) or
(c) (as applicable), and the denominator of which is the number of
shares owned by the Tag-Along Seller and all Tagging Persons and proposed to be
included in such Tag-Along Sale in accordance with Section 4.01(b) and
(c).


 


“Termination
Securities” means, with respect to any Terminated Management
Shareholder, the following Company Equity Securities:


 


(i) all unvested Class A Common Shares held by such
Terminated Management Shareholder as of the applicable Termination Date; and


 


7














 


(ii) all vested Class A Common Shares held
by such Terminated Management Shareholder as of the applicable Termination
Date, if the Termination Event giving rise to the termination of such
Terminated Management Shareholder’s employment is (A) the termination of
employment by such Terminated Management Shareholder without Good Reason or (B) the
termination of employment of such Terminated Management Shareholder by the
Employer for Cause (it being understood that following a termination of any
Terminated Management Shareholder’s employment (x) by such Terminated
Management Shareholder for Good Reason, (y) by the Employer without Cause,
or (z) due to the death, disability of such Terminated Management
Shareholder, no Class A Common Shares held by such Terminated Management
Shareholder or his or her Permitted Transferees shall constitute Termination
Securities).


 


“Third Party”
means a prospective purchaser (other than a Sponsor Permitted Transferee of the
prospective selling Sponsor) of Company Equity Securities in a bona fide arm’s-length
transaction.


 


“Transfer”
means, with respect to any Company Equity Securities, (i) when used as a
verb, to sell, assign, dispose of, exchange, pledge, encumber, hypothecate,
transfer or grant any option or right (voting or otherwise) or interest in,
such Company Equity Securities or any participation therein, whether directly
or indirectly (through one or more intermediaries or otherwise), and whether
voluntary, involuntary or by operation of law (whether by merger, consolidation,
binding share exchange or otherwise), or agree or commit to do any of the
foregoing, and (ii) when used as a noun, a direct or indirect sale,
assignment, disposition, exchange, pledge, encumbrance, hypothecation, transfer
or grant of any option or right (voting or otherwise) or interest in, such
Company Equity Securities or any participation therein, whether directly or
indirectly (through one or more intermediaries or otherwise), and whether
voluntary, involuntary or by operation of law (whether by merger,
consolidation, binding share exchange or otherwise) or any agreement or
commitment to do any of the foregoing.


 


“Unreturned Paid-in-Capital”
means in respect to a Class B Common Share, on November 10, 2006, an
amount equal to $10,000.  Thereafter, the
“Unreturned Paid-in
Capital” in respect of each Class B Common Share shall (x) decrease
(but not below $0) by the amount of any Distributions received in respect of
such Class B Common Share and (y) increase by an amount equal to 10%
per annum (after giving effect to any decreases pursuant to clause (x)), such
increases to be calculated quarterly, compounded on the basis of a 360-day year
of twelve 30-day months, which amounts will be deemed to accrue on a daily
basis, whether or not the Corporation has earnings or profits.


 


(b)                                 In addition,
each of the following terms is defined in the Section set forth opposite
such term:


 


 


	
  TERM

  	
   

  	
  SECTION

  
	
   

  	
   

  	
   

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Call Notice

  	
   

  	
  5.01(b)

  
	
  Call Notice Date

  	
   

  	
  5.01(b)

  
	
  Company

  	
   

  	
  Preamble

  
	
  Confidential Information

  	
   

  	
  7.01(a)

  
	
  Confidentiality Affiliates

  	
   

  	
  7.01(a)

  
	
  Counsel

  	
   

  	
  8.03

  
	
  Damages

  	
   

  	
  6.04

  
	
  Determination Time

  	
   

  	
  3.02(b)

  
	
  Drag-Along Sale

  	
   

  	
  4.02(a)

  
	
  Drag-Along Sale Notice

  	
   

  	
  4.02(b)

  



 


8

















 


	
  TERM

  	
   

  	
  SECTION

  
	
   

  	
   

  	
   

  
	
  Drag-Along Sale Notice
  Period

  	
   

  	
  4.02(b)

  
	
  Drag-Along Sale Price

  	
   

  	
  4.02(b)

  
	
  Drag-Along Seller

  	
   

  	
  4.02(a)

  
	
  Drag-Along Transferee

  	
   

  	
  4.02(a)

  
	
  Employer

  	
   

  	
  5.01(a)

  
	
  Fully Participating
  Investor

  	
   

  	
  4.04(c)

  
	
  Indemnified Liabilities

  	
   

  	
  8.13(a)

  
	
  Indemnified Party

  	
   

  	
  6.06

  
	
  Indemnifying Party

  	
   

  	
  6.06

  
	
  Issuance Notice

  	
   

  	
  4.04(a)

  
	
  Joinder Agreement

  	
   

  	
  Exhibit A

  
	
  Joining Party

  	
   

  	
  Exhibit A

  
	
  Management Shareholder

  	
   

  	
  Preamble

  
	
  Non-Qualified Permitted
  Transferee

  	
   

  	
  3.04(b)

  
	
  Offered Securities

  	
   

  	
  4.01(a)

  
	
  Original Management
  Shareholder

  	
   

  	
  3.04(b)

  
	
  Piggyback Maximum Offering
  Size

  	
   

  	
  6.01(b)

  
	
  Piggyback Registration

  	
   

  	
  6.01(a)

  
	
  Registering Investor

  	
   

  	
  6.01(a)

  
	
  Relative Ownership
  Percentage

  	
   

  	
  3.02(b)

  
	
  Sponsor

  	
   

  	
  Preamble

  
	
  Sponsors

  	
   

  	
  Preamble

  
	
  Tag-Along Notice

  	
   

  	
  4.01(a)

  
	
  Tag-Along Notice Period

  	
   

  	
  4.01(c)

  
	
  Tag-Along Offer

  	
   

  	
  4.01(a)

  
	
  Tag-Along Offerees

  	
   

  	
  4.01(a)

  
	
  Tag-Along Response Notice

  	
   

  	
  4.01(c)

  
	
  Tag-Along Right

  	
   

  	
  4.01(c)

  
	
  Tag-Along Sale

  	
   

  	
  4.01(a)

  
	
  Tag-Along Sale Percentage

  	
   

  	
  4.01(b)

  
	
  Tag-Along Seller

  	
   

  	
  4.01(a)

  
	
  Tagging Persons

  	
   

  	
  4.01(c)

  
	
  Terminated Management
  Shareholder

  	
   

  	
  5.01(a)

  
	
  Termination Date

  	
   

  	
  5.01(a)

  
	
  Termination Event

  	
   

  	
  5.01(a)

  
	
  Termination Price

  	
   

  	
  5.01(a)

  
	
  Termination Securities

  	
   

  	
  5.01(a)

  
	
  Third Party Claim

  	
   

  	
  8.13(a)

  
	
  Unrestricted Securities

  	
   

  	
  3.02(b)

  
	
  Unwinding Event

  	
   

  	
  3.04(b)

  



 


(c)                                  Other
Definitional and Interpretive Matters.  Unless otherwise
expressly provided, for purposes of this Agreement, the following rules of
interpretation shall apply:


 


(d)                                 Calculation of
Time.  When calculating the period
before which, within which or after which any act is to be done or step taken
pursuant to this Agreement, the date that is the reference 


 


9

















 


date in calculating such
period shall be excluded.  If the last
day of such period is a non-Business Day, the period in question shall end on
the next succeeding Business Day.


 


(e)                                  Dollars.  Any reference in this Agreement to “$” means U.S. dollars.


 


(f)                                    Annexes/Exhibits/Schedules.  The Annexes, Exhibits and Schedules to this
Agreement are hereby incorporated and made a part hereof and are an integral
part of this Agreement.  Any capitalized
terms used in any Annex, Exhibit or Schedule but not otherwise defined
therein shall be defined as set forth in this Agreement.


 


(g)                                 Gender.  Any reference in this Agreement to gender
shall include all genders.


 


(h)                                 Headings.  The provision of a Table of Contents, the
division of this Agreement into Articles, Sections and other subdivisions and
the insertion of headings are for convenience of reference only and shall not
affect or be utilized in construing or interpreting this Agreement.  All references in this Agreement to any “Article”
or “Section” are to the
corresponding Article or Section of this Agreement unless otherwise
specified.


 


(i)                                     Herein.  The words such as “herein,” “hereinafter,”
“hereof,” and “hereunder” refer to this Agreement as a
whole and not merely to a subdivision in which such words appear unless the
context otherwise requires.


 


ARTICLE 2


 


CORPORATE GOVERNANCE


 


SECTION 2.01                    Board of
Directors.  (a) From
and after the Effective Time, at each annual or special meeting at which any
directors of the Company are to be elected, and whenever the stockholders of
the Company act by written consent with respect to the election of directors,
each Investor, severally and not jointly, agrees to vote or otherwise give such
Investor’s consent in respect of all Class B Common Shares (whether now or
hereafter acquired) held of record or beneficially owned by such Investor, and
the Company shall take all necessary and desirable actions within its control,
in order to cause:


 


(b)                               (i)                                       the authorized
number of directors on the board of directors of the Company (the “Board”) to be,
initially, seven directors; provided
that the number of directors on the Board may be increased or decreased at any
time and from time to time at the direction of the Sponsors;


 


(ii)                                subject to Section 2.02
below, the election to the Board of :


 


(A)                               (1) the Chief Executive
Officer of the Company and, at the election of the Chief Executive Officer, one
director designated by such Chief Executive Officer and (2) that number of
directors designated by Capital Investors (the “CCMP Directors”); provided that Capital Investors shall have
the right to designate each successor CCMP Director and shall be entitled to
direct the removal from the Board of any CCMP Director; and


 


(B)                                 that number of directors
designated by Capital Investors and determined by Capital Investors in good
faith (1) not to have a material relationship with the Company or any
Affiliate thereof, and (2) not to be a current employee of a CCMP Fund or
CCMP Capital Advisors, LLC (the “Independent Directors”) (it being understood
that 


 


10

















 


Capital Investors shall have the right to designate each successor
Independent Director and shall be entitled to direct the removal from the Board
of any Independent Director).


 


The CCMP Directors shall initially be Stephen
Murray, Timothy Walsh and Stephen McKenna. 
Each designation of or any proposal to remove from the Board any
director shall be made by delivering to the Board a notice signed by the party
entitled to such designation or proposal. 
As promptly as practicable, but in any event within five (5) days
after delivery of such notice, the Company, the Board and the Investors shall
take or cause to be taken such actions as may be reasonably required to cause
the designation or removal proposed in such notice.  Such actions may include calling a meeting or
soliciting a written consent of the Board, or calling a meeting or soliciting a
written consent of the Investors.  Each
Investor shall take all actions required on its behalf to give effect to the
agreements set forth in this Article 2.


 


(c)                                  Without
limiting the foregoing, Asia Fund shall have the right to designate one
non-voting observer to the Board, which observer will be entitled to attend all
meetings of the Board, participate in all deliberations of the Board and
receive copies of all materials provided to the Board, provided that such observer shall have no
voting rights with respect to actions taken or elected not to be taken by the
Board.


 


SECTION 2.02                    Voting
Agreement.  In
addition, prior to an IPO, as to any matter or action that requires a vote or
written consent of the stockholders of the Company, whether by law or pursuant
to any agreement, each Investor (other than the Sponsors) agrees to vote its Class B
Common Shares, or to provide its written consent, only as directed by the CCMP
Representative; provided that no
Investor shall be required to vote in favor of, or provide its written consent
to, any action that would disproportionately affect such Investor relative to
the other Investors in any material and adverse manner.  In the event that any Investor (other than
the Sponsors) entitled to vote on or provide its written consent with respect
to a matter shall fail at any time to vote or act by written consent with
respect to any Class B Common Shares held of record or beneficially owned
by such Investor or as to which such Investor has voting control, such Investor
hereby irrevocably grants to and appoints the CCMP Representative such Investor’s
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of such Investor, to vote or act by written consent with
respect to such Class B Common Shares and to grant a consent, proxy or
approval in respect of such shares, in each case in such manner as the CCMP
Representative shall determine in its sole and absolute discretion.  Each Investor (other than the Sponsors)
hereby affirms that the irrevocable proxy set forth in this Section 2.02
will be valid for the term of this Agreement and is given to secure the
performance of the obligations of such Investor under this Agreement.  Each such Investor (other than the Sponsors)
hereby further affirms that each proxy hereby granted shall, for the term of
this Agreement, be irrevocable and shall be deemed coupled with an interest.


 


SECTION 2.03                    Committees.  The Board may, by duly adopted action of the
Board, designate one or more committees, including compensation and audit committees,
of one or more directors, including alternates who may replace any absent or
disqualified member at any meeting of the committee; provided,
however, any executive committee of the
Board must include the Chief Executive Officer. 
Asia Fund shall have the right to designate one non-voting observer to
any committee of the Board comprised of one or more CCMP Directors, which
observer will be entitled to attend all meetings of such committee, participate
in all deliberations of such committee and receive copies of all materials
provided to such committee; provided that
such observer shall have no voting rights with respect to actions taken or
elected not to be taken by such committee.


 


SECTION 2.04                    Chairman.  A chairman may be appointed by the directors
from among themselves.  The Chairman, if
appointed, will preside over meetings of the Board but shall otherwise have no
greater authority than any other director.


 


11

















 


SECTION 2.05                    Payments to
Directors; Reimbursements.  No
director who is an officer of the Company or otherwise employed by the Company
or any of its Subsidiaries shall be entitled to remuneration from the Company
for services rendered in his or her capacity as a director (other than for
reimbursement of reasonable out-of-pocket expenses of such director in
accordance with Company policy and as may be authorized by the Board).  The out-of-pocket expenses of the Board
observer designated by Asia Fund incurred in connection with his or her
attendance at any meeting of the Board or any Committee thereof shall be
reimbursed by the Company.  The Board may
authorize Independent Directors to receive director fees in respect of services
rendered as a director of the Company.


 


SECTION 2.06                    Competitive
Opportunity.  If any
director who is not employed by the Company or any of its Subsidiaries acquires
knowledge of a potential transaction or matter which may be an investment or
business opportunity or prospective economic or competitive advantage in which
the Company could have an interest or expectancy (a “Competitive Opportunity”)
or otherwise is then exploiting any Competitive Opportunity, the Company shall
have no interest in, and no expectation that, such Competitive Opportunity be
offered to it, any such interest or expectation being hereby renounced so that
each director who is not employed by the Company or any of its Subsidiaries
(other than any such director who is bound by any employment, consulting or
noncompetition agreements that prohibit such actions) shall (i) have no
duty to communicate or present such Competitive Opportunity to the Company and (ii) have
the right to hold any such Competitive Opportunity for such director’s (and its
agents’, partners’ or affiliates’) own account and benefit or to recommend,
assign or otherwise transfer or deal in such Competitive Opportunity to Persons
other than the Company or any Affiliate of the Company.


 


SECTION 2.07                    Notice of
Meetings.  Regular
meetings of the Board may be held without notice.  Special meetings of the Board may be called
by any CCMP Director and may be held upon 48 hours’ notice to each director and
Board observer, either personally, by mail, by telegram or by facsimile, or
such shorter period as approved by the Board; provided
that such notice requirement shall be deemed waived for any special meeting if
each director is present at such special meeting.


 


SECTION 2.08                    Subsidiary
Directors.  If
requested by the CCMP Representative, the Parties agree to take all necessary
action, either directly through the Company or otherwise, to cause the board of
directors of each Subsidiary of the Company (if any) to have at all times a
board composition identical (including with respect to the Asia Fund board
observer but excluding any Independent Directors) to the Board.


 


SECTION 2.09                    Termination
Upon IPO.  The
provisions of this Article 2 shall terminate and have no further
force or effect upon the first to occur of the consummation of an IPO or a
Change of Control.


 


ARTICLE 3


 


RESTRICTIONS ON TRANSFER


 


SECTION 3.01                    General Restrictions on Transfer.


 


(a)                                  Each Investor
understands and agrees that the Company Equity Securities held by it on the
date hereof have not been registered under the Securities Act and are
restricted securities under the Securities Act.  No Investor shall Transfer any Company Equity
Securities (or solicit any offers in respect of any Transfer of any Company
Equity Securities), except in compliance with the Securities Act, any other
applicable securities or “blue sky”
laws and any restrictions on Transfer contained in this Agreement or any other
provisions set forth in any other agreements or instruments pursuant to which
such Company Equity Securities were issued. 
No Investor shall Transfer any Company Equity Securities 


 


12

















 


if such Transfer would cause
any class of Company Equity Securities to be required to become subject to
registration under the Exchange Act.


 


(b)                                 Notwithstanding
anything in this Agreement to the contrary, any attempt to Transfer any Company
Equity Securities not in compliance with this Agreement shall be null and void
and have no force or effect, and the Company shall not, and shall cause any
transfer agent not to, give any effect in such entity’s share records to such attempted
Transfer.  The parties hereto acknowledge
that the transfer restrictions contained herein are reasonable and in the best
interests of the Company.


 


SECTION 3.02                    Restrictions on Transfer by Management Shareholders.  Notwithstanding anything in this Agreement to
the contrary:


 


(a)                                  Prior to the
IPO, no Management Shareholder may Transfer any of its Company Equity
Securities, except to a Permitted Transferee in accordance with Section 3.04
or in a Transfer of Company Equity Securities in a Tag-Along Sale or Drag-Along
Sale pursuant to Sections 4.01 or 4.02 (in each case, in
compliance with any agreement or instrument pursuant to which such Company
Equity Securities have been issued).


 


(b)                                 Following the
IPO, and subject to Section 3.01, in addition to Transfers to
Permitted Transferees, each Management Shareholder may Transfer Company Equity
Securities, other than any unvested Class A Common Shares (such Company
Equity Securities that may be Transferred, “Unrestricted Securities”).


 


SECTION 3.03                    Legends.


 


(a)                                  At all times
prior to the IPO, in addition to any other legend that may be required, each
certificate for Company Equity Securities issued to any Investor shall bear a
legend in substantially the following form:


 


“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS AND MAY NOT
BE TRANSFERRED, OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH.  THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE SHAREHOLDERS’ AGREEMENT DATED AS
OF NOVEMBER 10, 2006 (AS AMENDED FROM TIME TO TIME), A COPY OF WHICH MAY BE
OBTAINED UPON REQUEST FROM THE COMPANY OR ANY SUCCESSOR THERETO.”


 


(b)                                 If any Company
Equity Securities shall become freely transferable under the Securities Act,
upon the written request of the holder thereof, the Company shall issue to such
holder a new certificate evidencing such Company Equity Securities without the
first sentence of the legend required by Section 3.03(a) endorsed
thereon.  The Company may request that
the holder provide an opinion of legal counsel reasonably acceptable to it
stating that such Company Equity Securities are freely transferable under the
Securities Act.  If any Company Equity
Securities cease to be subject to any and all restrictions on Transfer and all
other obligations set forth in this Agreement, the Company upon the written
request of the holder thereof, shall issue to such holder a new certificate
evidencing such 


 


13

















 


Company Equity Securities
without the second sentence of the legend required by Section 3.03(a) endorsed
thereon.


 


SECTION 3.04                    Permitted Transferees.


 


(a)                                  Subject to Section 3.01,
any Management Shareholder may at any time Transfer any or all of its Company
Equity Securities to a Permitted Transferee of such Management Shareholder
without the consent of any Person so long as such Permitted Transferee shall
have agreed in writing to be bound by the terms of this Agreement by executing
a Joinder Agreement (and such Transfer is otherwise in compliance with any
agreement or instrument to which such Company Equity Securities were
issued).  Such Management Shareholder
must give prior written notice to the Company of any proposed Transfer to a
Permitted Transferee, including the identity of such proposed Permitted
Transferee and such other documentation reasonably requested by the Company to
ensure compliance with the terms of this Agreement.


 


(b)                                 If, while a
Permitted Transferee holds any Company Equity Securities, a Permitted
Transferee (a “Non-Qualified
Permitted Transferee”) ceases to qualify as a Permitted
Transferee in relation to the initial transferor Management Shareholder (being
the original member of management of the Company that originally held such Company
Equity Securities) (any such initial transferor Management Shareholder, an “Original Management Shareholder”)
from whom or which such Permitted Transferee or any previous Permitted
Transferee of such initial transferor Management Shareholder received such
shares (an “Unwinding
Event”), then:


 


(i)                                     such Original
Management Shareholder and such Non-Qualified Permitted Transferee shall
forthwith notify the Company and the CCMP Representative of the pending
occurrence of such Unwinding Event; and


 


(ii)                                  immediately
following such Unwinding Event, such Original Management Shareholder and such
Non-Qualified Permitted Transferee shall take all actions necessary to effect a
Transfer of all the Company Equity Securities held by the Non-Qualified
Permitted Transferee either back to such Management Shareholder or, pursuant to
this Section 3.04, to another Person that qualifies as a Permitted
Transferee of such Original Management Shareholder.


 


ARTICLE 4


 


TAG-ALONG RIGHTS; DRAG-ALONG
RIGHTS; PREEMPTIVE RIGHTS


 


SECTION 4.01                    Tag-Along Rights.


 


(a)                                  Subject to Section 4.03,
if, prior to any IPO or Change of Control, one or more Sponsors (collectively,
the “Tag-Along Seller”)
propose to Transfer more than 15% of the Aggregate Ownership of all Sponsors of
any class of Company Equity Securities held by the Sponsors on the date hereof
(“Offered Securities”)
to any Third Party or Third Parties in a single transaction or in a series of
related transactions, (a “Tag-Along
Sale”), the Tag-Along Seller shall first, by written notice to
the Company (a copy of which (“Tag-Along Notice”) the Company shall provide to each of
the other Investors (the “Tag-Along
Offerees”)) offer the Tag-Along Offerees (“Tag-Along Offer”) the
opportunity to participate in such Transfer in accordance with this Section 4.01.


 


(b)                                 The Tag-Along
Notice shall identify (i) the class and number of shares of Offered
Securities proposed to be sold by the Tag-Along Seller, (ii) the fraction
expressed as a 


 


14

















 


percentage, determined by
dividing the number of shares of the specified class to be purchased from the
Tag-Along Seller in such Tag-Along Sale by the Aggregate Ownership of the
Tag-Along Seller of the specified class (the “Tag-Along Sale Percentage”), (iii) the
consideration for which the Transfer is proposed to be made, (iv) the name
and address of each proposed Third Party transferee, (v) the proposed
Transfer date and (vi) all other material terms and conditions of the
Tag-Along Offer, including the form of the proposed agreement, if any, and a
firm offer by each proposed Third Party transferee to purchase shares of the
specified class of Offered Securities.


 


(c)                                  From the date
of its receipt of the Tag-Along Notice, each Tag-Along Offeree shall have the
right (a “Tag-Along
Right”), exercisable by written notice (“Tag-Along Response Notice”)
given to the Tag-Along Seller within 10 days after receipt of the Tag-Along
Notice (the “Tag-Along
Notice Period”), to request that the Tag-Along Seller include in
the proposed Transfer a number of vested shares of the specified class of
Offered Securities held by such Tag-Along Offeree (such number of shares shall
not in any event exceed the Tag-Along Sale Percentage of the total number of
shares of the specified class of Offered Securities held by such Tag-Along
Offeree). The Tag-Along Response Notice shall include wire transfer
instructions for payment of the purchase price for the Offered Securities to be
sold in such Tag-Along Sale.  The
Tag-Along Offerees that exercise their Tag-Along Rights hereunder (the “Tagging Persons”)
shall, upon request, deliver to the Tag-Along Seller, with the Tag-Along
Response Notice, the certificate or certificates representing the Company
Equity Securities of such Tagging Persons to be included in the Tag-Along Sale,
together with a limited power-of-attorney authorizing the Tag-Along Seller to
Transfer such Company Equity Securities on the terms set forth in the Tag-Along
Notice.  Delivery of the Tag-Along
Response Notice with such certificate or certificates and limited
power-of-attorney shall constitute an irrevocable acceptance of the Tag-Along
Offer by the Tagging Persons.  In order
to participate in a Tag-Along Sale, subject to Section 4.03(b), the
Tagging Persons must agree to enter into and execute substantially identical
agreements and documents as the Tag-Along Seller enters into and executes in
connection with the Tag-Along Sale.


 


(d)                                 The Tag-Along
Seller shall attempt to obtain the inclusion in the proposed Tag-Along Sale of
the entire number of shares of the specified class of Offered Securities which
each of the Tagging Persons requested to have included in the Tag-Along Sale
(as evidenced by each such Tagging Person’s Tag-Along Response Notice prepared
in accordance with Section 4.01(c)).  In the event the Tag-Along Seller shall be
unable to obtain the inclusion of such entire number of shares of the specified
class of Offered Securities in the proposed Tag-Along Sale, the number of
shares of the specified class of Offered Securities to be sold in the proposed
Tag-Along Sale shall be allocated among the Tag-Along Seller and each Tagging
Person, with each such Person being entitled to include in such Tag-Along Sale
a number of shares of the specified class of Offered Securities as is equal to
the Tag-Along Pro Rata Share with respect to such Tag-Along Seller or such
Tagging Person (as applicable).


 


(e)                                  If, at the end
of a 120-day period after the date of receipt of the Tag-Along Notice (which
120-day period shall be extended if any of the transactions contemplated by the
Tag-Along Offer are subject to regulatory approval until the expiration of five
Business Days after all such approvals have been received, but in no event
later than 180 days after the date of receipt of the Tag-Along Notice), the
Tag-Along Seller has not completed the Transfer of the Offered Securities on
substantially the same terms and conditions set forth in the Tag-Along Notice,
the Tag-Along Seller shall (i) promptly return to the Tagging Persons the
limited power-of-attorney (and all copies thereof) together with all
certificates representing the Offered Securities that such Tagging Persons
delivered for Transfer pursuant to this Section 4.01 and any other
documents in the possession of the Tag-Along Seller executed by the Tagging
Persons in connection with the proposed Tag-Along Sale, and (ii) not
conduct any Transfer of such shares of the specified class of Offered
Securities without again complying with this Section 4.01.


 


15

















 


(f)                                    Concurrently
with the consummation of the Tag-Along Sale, the Tag-Along Seller shall (i) notify
the Tagging Persons thereof and (ii) remit or cause to be remitted to each
Tagging Person the total consideration paid at the closing of the Tag-Along
Sale for the Company Equity Securities of such Tagging Person Transferred
pursuant thereto, with the cash portion of the purchase price paid by wire
transfer of immediately available funds in accordance with the wire transfer
instructions in the Tag-Along Response Notice.


 


(g)                                 If, at the
termination of the Tag-Along Notice Period, any Investor has not elected to
participate in the Tag-Along Sale, such Investor shall be deemed to have waived
its rights under this Section 4.01(a) with respect to the Transfer
of the class or classes of Offered Securities owned by it or its Permitted
Transferees pursuant to such Tag-Along Sale.


 


(h)                                 Notwithstanding
anything contained in this Section 4.01, there shall be no
liability on the part of the Tag-Along Seller to the Tagging Persons (other
than the obligation to return any certificates evidencing Company Equity
Securities and limited powers-of-attorney received by the Tag-Along Seller) if
the Transfer of Company Equity Securities pursuant to this Section 4.01
is not consummated for any reason or no reason. 
The decision to effect a Transfer of Company Equity Securities pursuant
to this Section 4.01 by the Tag-Along Seller is in the sole and
absolute discretion of the Tag-Along Seller.


 


(i)                                     This Section 4.01
shall not apply to any Transfer of Company Equity Securities (A) in a
Drag-Along Sale for which the Drag-Along Seller shall have elected to exercise
its rights under Section 4.02 or (B) in connection with the
IPO.


 


(j)                                     The provisions
of this Section 4.01 shall terminate and have no further force or
effect upon the first to occur of the consummation of an IPO or a Change of
Control.


 


SECTION 4.02                    Drag-Along Rights.


 


(a)                                  Subject to Section 4.03,
if at any time one or more Sponsors (collectively, the “Drag-Along Seller”)
propose to Transfer more than a majority of the Aggregate Ownership of all
Sponsors of any class of Company Equity Securities held by the Sponsors on the
date hereof (a “Drag-Along
Sale”) to any Third Party or Third Parties (the “Drag-Along Transferee”)
in a single transaction or in a series of related transactions, the Drag-Along
Seller may at its option require each Investor other than the Drag-Along Seller
(a “Drag-Along Investor”)
to Transfer, and each Drag-Along Investor hereby agrees to Transfer, such
percentage of each class of Company Equity Securities then held by such
Drag-Along Investor as is equal to the percentage of all shares of Company
Equity Securities held by such Drag-Along Seller that are proposed to be sold
by such Drag-Along Seller in such Drag-Along Sale, on substantially the same
terms and conditions as are applicable to the Drag-Along Seller; provided that, consistent with Section 4.03(f),
the terms of such Drag-Along Sale may provide different per share consideration
for different classes of Company Equity Securities.  All Drag-Along Investors shall cooperate in,
and shall take all actions that the Drag-Along Seller deems reasonably
necessary or desirable to consummate the Drag-Along Sale, including, without
limitation, (i) voting their respective Company Equity Securities (or
executing and delivering any written consents in lieu thereof) in favor of the
Drag-Along Sale and all actions deemed necessary or appropriate by the
Drag-Along Seller in connection with the Drag-Along Sale, including voting to
approve a Drag-Along Sale if such Drag-Along Sale is structured as a merger or
a sale of all or substantially all of the assets of the Company, and against
any action or proposal that may prevent, hinder or impede the consummation of the
Drag-Along Sale, (ii) to the extent permitted by applicable law, not
exercising any dissenters’ or appraisal rights to which they may be entitled in
connection with the Drag-Along Sale, and (iii) subject to Section 4.03(b),
entering into agreements with the Drag-Along Transferee on terms substantially
identical to those (if any) entered into 


 


16

















 


between the Drag-Along
Transferee and the Drag-Along Seller. 
Each Drag-Along Investor hereby grants to the CCMP Representative, an
irrevocable proxy coupled with an interest to vote, including in any action by
written consent, such Drag-Along Investor’s Company Equity Securities in
accordance with such Drag-Along Investor’s agreements in this Section 4.03
and a power of attorney to execute and deliver in the name and on behalf of
such Drag-Along Investor all such agreements, instruments and other
documentation (including any written consents of shareholders) as is required
to Transfer the Company Equity Securities held by such Drag-Along Investor to
the Drag-Along Transferee.


 


(b)                                 The Drag-Along
Seller shall provide written notice of such Drag-Along Sale to each Drag-Along
Investor (a “Drag-Along
Sale Notice”) not later than 10 days prior to the proposed
Drag-Along Sale.  The Drag-Along Sale
Notice shall identify the Drag-Along Transferee and the consideration for which
a Transfer is proposed to be made (the “Drag-Along Sale Price”) and all other
material terms and conditions of the Drag-Along Sale.  Each Drag-Along Investor shall be required to
participate in the Drag-Along Sale on the terms and conditions set forth in the
Drag-Along Sale Notice and to tender its Company Equity Securities.  The price and form of consideration payable
in such Transfer shall be the Drag-Along Sale Price.  Not later than five days after receipt of the
Drag-Along Sale Notice (the “Drag-Along Sale Notice Period”), each Drag-Along
Investor shall deliver to a representative of the Drag-Along Seller designated
in the Drag-Along Sale Notice the certificate or certificates and other
applicable instruments representing the Company Equity Securities of each such
Drag-Along Investor to be included in the Drag-Along Sale, together with wire
transfer instructions for payment of the cash portion of the consideration to
be received in such Drag-Along Sale, or, if such delivery is not permitted by
applicable law, an unconditional agreement to deliver such Company Equity
Securities pursuant to this Section 4.02(b) at the closing for
such Drag-Along Sale against delivery to such Drag-Along Investor of the
consideration therefor.  If a Drag-Along
Investor should fail to deliver such certificates to the Drag-Along Seller and
the Drag-Along Sale is consummated, the Company shall cause the books and
records of the Company to reflect that such Company Equity Securities are bound
by the provisions of this Section 4.02(b) and that such
Company Equity Securities shall be Transferred to the Drag-Along Transferee
immediately upon surrender for Transfer by the holder thereof.


 


(c)                                  The Drag-Along
Seller shall have a period of 120 days from the date of receipt of the
Drag-Along Sale Notice to consummate the Drag-Along Sale on the terms and
conditions set forth in such Drag-Along Sale Notice; provided that if such Drag-Along Sale is subject to
regulatory approval, such 120-day period shall be extended until the expiration
of five Business Days after all such approvals have been received, but in no
event later than 180 days after the date of receipt of the Drag-Along Sale Notice.  If the Drag-Along Sale shall not have been
consummated during such period, the Drag-Along Seller shall promptly return to
each of the Drag-Along Investors all certificates and other applicable
instruments representing Company Equity Securities that such Drag-Along
Investors delivered for Transfer pursuant hereto, together with any other
documents in the possession of the Drag-Along Seller executed by each such
Drag-Along Investor in connection with such proposed Transfer, and all the
restrictions on Transfer contained in this Agreement or otherwise applicable at
such time with respect to such Company Equity Securities owned by each such
Drag-Along Investor shall again be in effect.


 


(d)                                 Concurrently
with the consummation of the Drag-Along Sale, the Drag-Along Seller shall give
notice thereof to the Drag-Along Investors and shall remit or cause to be
remitted to each Drag-Along Investor that have surrendered their certificates
and other applicable instruments the total consideration paid at the closing of
the Drag-Along Sale for the Company Equity Securities of such Drag-Along
Investor Transferred pursuant thereto, with the cash portion of which is to be
paid by wire transfer of immediately available funds in accordance with such
Drag-Along Investor’s wire transfer instructions.


 


(e)                                  Notwithstanding
anything contained in this Section 4.02, there shall be no
liability on the part of the Drag-Along Seller to the Drag-Along Investors
(other than the obligation to 


 


17

















 


return the limited
power-of-attorney and the certificates and other applicable instruments
representing Company Equity Securities received by the Drag-Along Seller) if
the Transfer of Company Equity Securities pursuant to this Section 4.02
is not consummated for any reason or for no reason, regardless of whether the
Drag-Along Seller has delivered a Drag-Along Sale Notice.  The decision to effect a Transfer of Company
Equity Securities pursuant to this Section 4.02 by the Drag-Along
Seller is in the sole and absolute discretion of the Drag-Along Seller.


 


(f)                                    The provisions
of this Section 4.02 shall terminate and have no further force or
effect upon the first to occur of the consummation of an IPO or a Change of
Control.


 


SECTION 4.03                    Additional Provisions Related to Tag-Along Sales and
Drag-Along Sales. 
Notwithstanding anything contained in Section 4.01 or Section 4.02
to the contrary, in connection with a Tag-Along Sale under Section 4.01
or a Drag-Along Sale under Section 4.02:


 


(a)                                  Upon the consummation
of such Tag-Along Sale or Drag-Along Sale, all Sponsors and Management
Shareholders holding the same class of Company Equity Securities participating
therein will receive the same form and amount of consideration per share, or,
if any Investor is given an option as to the form and amount of consideration
to be received in respect of a specified class of Company Equity Securities,
all Investors holding such specified class of Company Equity Securities
participating therein will be given the same option.


 


(b)                                 Each Tag-Along
Offeree or Drag-Along Investor, as the case may be, shall (i) make such
representations and warranties (to the best of its knowledge) and shall make
such covenants and enter into such definitive agreements as are customary for
transactions of the nature of the proposed Transfer, (ii) benefit from and
be subject to all of the same provisions of the definitive agreements as are
applicable to the Tag-Along Seller or Drag-Along Seller, as the case may be,
and (iii) be required to bear its proportionate share of any escrows,
holdbacks or adjustments in respect of the purchase price or indemnification
obligations, and (iv) cooperate in obtaining all governmental and
third-party consents and approvals reasonably necessary or desirable to consummate
such Tag-Along Sale or Drag-Along Sale (as applicable).


 


(c)                                  In the event
the consideration to be paid in exchange for Company Equity Securities in a
Tag-Along Sale or a Drag-Along Sale includes securities, and the receipt
thereof by a Tag-Along Offeree or Drag-Along Investor, as the case may be,
would require under applicable law (a) the registration or qualification
of such securities or of any Person as a broker or dealer or agent with respect
to such securities where such registration or qualification is not otherwise
required for the Tag-Along Sale or a Drag-Along Sale or (b) the provision
to any Tag-Along Seller or Drag-Along Seller of any specified information
regarding such securities or the issuer thereof that is not otherwise required
to be provided for the Tag-Along Sale or Drag-Along Sale, then such Tag-Along
Offeree or Drag-Along Investor, as the case may be, shall not have the right to
sell Company Equity Securities in such proposed Tag-Along Sale or Drag-Along
Sale.  In such event, the Tag-Along
Seller or Drag-Along Seller, as the case may be, shall (i) in the case of
a Tag-Along Sale, have the right, but not the obligation, and (ii) in the
case of a Drag-Along Sale, have the obligation, in each case, to cause to be
paid to such Tag-Along Offeree or Drag-Along Investor, as the case may be, in
lieu thereof, against surrender of the Company Equity Securities which would
have otherwise been Transferred by such Tag-Along Offeree or Drag-Along
Investor, as the case may be, to the prospective purchaser in the proposed
Tag-Along Sale or a Drag-Along Sale, an amount in cash equal to the Fair Market
Value of such Company Equity Securities as of the date such securities would
have been issued, in exchange for such Company Equity Securities.


 


(d)                                 The Company and
the Investors will cooperate in obtaining all governmental and third-party
approvals and consents reasonably necessary or desirable to consummate such
Transfer.


 


18














 


(e)                                  Each Tagging
Person shall bear an amount of the reasonable costs and expenses incurred by
the Investors or the Company in connection with any proposed Tag-Along Sale
(whether or not consummated), including all attorneys fees and charges, all
accounting fees and charges and all finders, brokerage or investment banking
fees, charges or commissions, pro rata in proportion to the consideration paid
or proposed to be paid to such Tagging Person in connection with such Tag-Along
Sale as compared to the aggregate consideration to be paid to the Tag-Along
Seller and all Tagging Persons in connection with such Tag-Along Sale; provided, that, in connection with any
Tag-Along Sale, each Tagging Person shall bear in its entirety any attorneys
fees and charges, accounting fees and charges and any other advisor fees,
charges or commissions incurred by such Tagging Person in connection with such
Tag-Along Sale.


 


(f)                                    In connection
with (i) each Tag-Along Sale, each Tagging Person shall receive, with
respect to the Class B Common Shares, the same amount of consideration
received by the Tag-Along Sellers per Class B Common Share and (ii) each
Drag-Along Sale, each Drag-Along Investor shall receive, with respect to the Class B
Common Shares, the same amount of consideration received by the Drag-Along
Sellers per Class B Common Share; provided,
however, that in connection with
any such sale (A) Class A Common Shares may be valued at (and the
holder thereof entitled to receive) a lower price per share than the Class B
Common Shares, and (B) after giving effect to any vesting triggered by
such Tag-Along Sale or Drag-Along Sale, unvested Class A Common Shares may
be valued at (and the holder thereof entitled to receive) a lower price per
share than vested Class A Common Shares, in each case, to account for the
different rights, powers, preferences and privileges in respect thereof as set
forth in the Company’s Certificate of Incorporation and other agreements
relating to such shares (including, without limitation, the right of the
holders of Class B Common Shares to receive distributions in respect of
their unreturned paid-in-capital of the Company prior the right of the holders
of Class A Common Shares to receive distributions ratably based on the
number of outstanding Shares held by such holders).


 


SECTION 4.04                    Preemptive Rights.


 


(a)                                  Prior to the
consummation of an IPO, the Company shall give each of the Investor that is an “accredited investor” (as such term is
defined in Rule 501(a) of the Securities Act) as of the time of any proposed
issuance by the Company of any Company Equity Securities, written notice (an “Issuance Notice”) of
such proposed issuance at least 10 days prior to the proposed issuance
date.  The Issuance Notice shall specify
the number of Company Equity Securities and the price at which such Company
Equity Securities are proposed to be issued and the other material terms and
conditions of the issuance, including, without limitation, the proposed closing
date.  Subject to Section 4.04(g),
(i) the holders of Class B Common Shares (taken as a whole) shall be
entitled to purchase, at the price and on the other terms and conditions
specified in the Issuance Notice, a percentage of such newly issued Company
Equity Securities equal to the percentage of Company consideration, assets and
properties to which the holders of Class B Common Shares would be entitled
upon the liquidation, dissolution or winding up of the Company (and after
giving effect to the repayment, in full, of the Unreturned Paid-in Capital to
such holders) (the “Class B Preemptive Rights Percentage”;
and the product of (x) the aggregate number of Company Equity Securities
proposed to be sold by the Company and set forth in such Issuance Notice multiplied by (y) the Class B Preemptive Rights
Percentage being the “Class B Preemptive
Rights Share”), (ii) the holders of Class A Common
Shares (taken as a whole) shall be entitled to purchase, at the price and on
the other terms and conditions specified in the Issuance Notice, such
percentage of such newly issued Company Equity Securities as is equal the
difference between (A) 100% minus (B) the
Class B Preemptive Rights Percentage (the “Class A
Percentage”; and the product of (x) the aggregate number of
Company Equity Securities proposed to be sold by the Company and set forth in
such Issuance Notice multiplied by (y) the
Class A Preemptive Rights Percentage being the “Class A
Preemptive Rights Share”), (iii) each Investor holding Class B
Common Shares (solely in such capacity) shall be entitled to purchase, at the
price and on the other terms and conditions specified in the 


 


19

















 


Issuance
Notice, such number of Company Equity Securities proposed to be sold by the
Company as is equal to the product of (x) the Class B Preemptive
Rights Share, multiplied by (y) a
fraction, the numerator of which is such Investor’s Aggregate Ownership of Class B
Common Shares of as of the date of such Issuance Notice, and the denominator of
which is the Aggregate Ownership of Class B Common Shares of all Investors
as of the date of such Issuance Notice and (iv) each Investor holding Class A
Common Shares (solely in such capacity) shall be entitled to purchase, at the
price and on the other terms and conditions specified in the Issuance Notice,
such number of Company Equity Securities proposed to be sold by the Company as
is equal to the product of (x) the Class A Preemptive Rights Share, multiplied by (y) a fraction, the
numerator of which is such Investor’s Aggregate Ownership of Class A
Common Shares of as of the date of such Issuance Notice, and the denominator of
which is the Aggregate Ownership of Class A Common Shares of all Investors
as of the date of such Issuance Notice.


 


(b)                                 Each Investor
may exercise its rights under this Section 4.04 by delivering
written notice of its election to purchase such Company Equity Securities to
the Company, within 10 days after receipt of the Issuance Notice.  A delivery of such notice (which notice shall
specify the number of Company Equity Securities requested to be purchased by
the Investor submitting such notice) by such Investor shall constitute a
binding agreement of such Investor to purchase, at the price and on the terms
and conditions specified in the Issuance Notice, the number of Company Equity
Securities specified in such Investor’s notice. 
If, at the termination of such 10 day-period, any Investor has not
exercised its right to purchase any of its pro rata share of such offered
Company Equity Securities (as calculated pursuant to Section 4.04(a)),
such Investor shall be deemed to have waived all of its rights under this Section 4.04
with respect to, and only with respect to, the purchase of such Company Equity
Securities specified in the Issuance Notice.


 


(c)                                  If (i) any
Investor holding Class B Common Shares fails to exercise its preemptive
rights under this Section 4.04, or elects to exercise such rights
with respect to less than such Investor’s allocated share (the difference
between such Investor’s allocated share (solely in its capacity as a holder of Class B
Common Shares (as calculated pursuant to Section 4.04(a))) and the
number of shares for which such Investor exercised its preemptive rights under
this Section 4.04 (solely in its capacity as a holder of Class B
Common Shares), the “Class B Excess Shares”),
any participating Investor holding Class B Common Shares and electing to
exercise its rights with respect to its full allocated share (a “Fully Participating Class B
Investor”) shall be entitled to purchase from the Company an additional
number of Company Equity Securities equal to the product of (A) the Class B
Excess Shares and (B) a fraction, the numerator of which is the Aggregate
Ownership of Class B Common Shares of such Fully Participating Investor,
and the denominator of which is equal to the sum of the Aggregate Ownership of Class B
Common Shares of all Fully Participating Class B Investors purchasing such
additional shares and (ii) any Investor holding Class A Common Shares
fails to exercise its preemptive rights under this Section 4.04, or
elects to exercise such rights with respect to less than such Investor’s
allocated share (the difference between such Investor’s allocated share (solely
in its capacity as a holder of Class A Common Shares (as calculated
pursuant to Section 4.04(a))) and the number of shares for which
such Investor exercised its preemptive rights under this Section 4.04
(solely in its capacity as a holder of Class A Common Shares), the “Class A Excess Shares”), any
participating Investor holding Class A Common Shares and electing to
exercise its rights with respect to its full allocated share (a “Fully Participating Class A
Investor”) shall be entitled to purchase from the Company an
additional number of Company Equity Securities equal to the product of (A) the
Class A Excess Shares and (B) a fraction, the numerator of which is
the Aggregate Ownership of Class A Common Shares of such Fully
Participating Investor, and the denominator of which is equal to the sum of the
Aggregate Ownership of Class A Common Shares of all Fully Participating Class A
Investors purchasing such additional shares.


 


(d)                                 The Company
shall have 120 days after the date of the Issuance Notice to consummate the
proposed issuance of any or all of such Company Equity Securities that the Investors



 


20

















 


have
elected not to purchase at the price and upon terms and conditions that are not
materially less favorable to the Company than those specified in the Issuance
Notice; provided that if such issuance
is subject to regulatory approval, such 120-day period shall be extended until
the expiration of five Business Days after all such approvals have been
received, but in no event later than 180 days after the date of the Issuance
Notice.  At the consummation of such
issuance, the Company shall issue certificates representing the Company Equity
Securities to be purchased by each Investor exercising preemptive rights
pursuant to this Section 4.04 registered in the name of such
Investor, against payment by such Investor of the purchase price for such
Company Equity Securities.  If the
Company proposes to issue any Company Equity Securities after such 120-day
period or on other terms materially less favorable to the Company, it shall
again comply with the procedures set forth in this Section 4.04.


 


(e)                                  The closing of
any issuance of Company Equity Securities contemplated by this Section 4.04
shall take place at the time and in the manner provided in the Issuance
Notice.  The Company shall be under no
obligation to consummate any proposed issuance of Company Equity Securities,
nor shall there be any liability on the part of such entity to any Investor if
the Company has not consummated any proposed issuance of Company Equity
Securities pursuant to this Section 4.04 for any reason or no
reason, regardless of whether it shall have delivered an Issuance Notice in
respect of such proposed issuance.


 


(f)                                    The Company may
offer and sell Company Equity Securities subject to the preemptive rights under
this Section 4.04 to an existing Sponsor without first offering
such Company Equity Securities to each of the other Investors or complying with
the procedures of this Section 4.04, so long as (i) each of
the other Investors receives prompt written notice of the consummation of such
sales and thereafter is given the opportunity to purchase a number of Company
Equity Securities equal to such number of shares as the Board shall, in good
faith, determine would have been offered for sale to such other Investors had
the other provisions of this Section 4.04 been complied with by the
Company in connection with such sale, within 45 days after the close of such
sale and in any event no later than 30 days after receipt of the notice
referred to herein on the same terms and conditions as such prior sale, and (ii) the
price per Company Equity Securities shall be identical to the price per share
paid in such prior sale.


 


(g)                                 The preemptive
rights under this Section 4.04 shall not apply to issuances or
sales in, or in connection with, the IPO, a merger of the Company with or into
another Person or an acquisition by the Company of another Person or
substantially all the assets of another Person, or issuances of Company Equity
Securities as a bona-fide “equity kicker”
to a lender in connection with a third party debt financing, issuances of
Company Equity Securities in connection with a dividend or upon any split or
subdivision or combination of Company Equity Securities, issuances, grants or
sales of Company equity Securities to employees, officers, managers and/or
directors of the Company or any of its Subsidiaries pursuant to employee
benefit, incentive or other plan, arrangement or agreement by the Company.


 


(h)                                 The provisions
of this Section 4.04 shall terminate and have no further force or
effect upon the occurrence of the consummation of an IPO or a Change of
Control.


 


21

















 


ARTICLE 5


 


REPURCHASE
RIGHTS


 


SECTION 5.01                    Repurchase Rights upon Termination.


 


(a)                                  Upon any
Management Shareholder who is an employee of the Company or any of its
Subsidiaries (the entity employing such Management Shareholder, the “Employer”) ceasing to
be employed by any of the Company or any of its Subsidiaries (a “Terminated Management Shareholder”)
for any reason (the reason for the cessation or termination of such employment,
the “Termination Event”
and the effective date of such termination, the “Termination Date”), subject to
applicable law and the provisions of this Article 5, the Company shall
have the right (but not the obligation) to purchase, and if such right is
exercised, such Terminated Management Shareholder shall sell, and shall cause
any Permitted Transferees of such Terminated Management Shareholder to sell
(and such Permitted Transferees shall sell), to the Company all or any portion
(as determined by the Company) of the Termination Securities owned by such
Terminated Management Shareholder and such Permitted Transferees at a price per
Termination Security equal to the Termination Price therefor (determined
pursuant to Section 5.02 below).


 


(b)                                 With respect to
each Termination Security, the Company shall notify a Terminated Management
Shareholder in writing, within the Call Period with respect to such Termination
Security, whether the Company will exercise its right to purchase such
Termination Security (the date on which a Terminated Management Shareholder is
so notified, the “Call
Notice Date”).


 


(c)                                  The closing of
the purchase by the Company of Termination Securities pursuant to this Article 5
shall take place at the principal office of the Company on the date chosen by
such entity, which date shall, except as may be reasonably necessary to
determine the Termination Price, in no event be more than 45 days after the
Company notifies such Terminated Management Shareholder of the exercise of its
right to purchase such Termination Securities pursuant to Section 5.01(b).  At such closing, (i) the Company shall
pay the Terminated Management Shareholder and/or such Terminated Management
Shareholder’s Permitted Transferees, as applicable, against delivery of duly
endorsed certificates described below representing such Termination Securities,
the aggregate Termination Price by wire transfer of immediately available
federal funds and (ii) the Terminated Management Shareholder and/or such
Terminated Management Shareholder’s Permitted Transferees, as applicable, shall
deliver to the Company  a certificate or
certificates representing the Termination Securities to be purchased by the
Company duly endorsed, or with stock powers duly endorsed, for transfer with
signature guaranteed, free and clear of any lien or encumbrance, with any
necessary share (or equivalent) transfer tax stamps affixed. The delivery of a
certificate or certificates for the Termination Securities by any Person
selling such Termination Securities pursuant to this Section 5.01
shall be deemed a representation and warranty by such Person that: (i) such
Person has full right, title and interest in and to such Termination
Securities; (ii) such Person has all necessary power and authority and has
taken all necessary action to sell such Termination Securities as contemplated;
(iii) such Termination Securities are free and clear of any and all liens
or encumbrances and (iv) there is no adverse claim with respect to such
Termination Securities.


 


SECTION 5.02                    Termination Pricing and Payment Terms.


 


(a)                                  Subject to Section 5.04,
the “Termination Price”
of a Termination Security shall be determined as follows:


 


(i)                                     If (x) the
Termination Security is unvested as of the Termination Date, and (y) the
Termination Event was for any reason other than a termination by the Employer
for Cause or a termination by the Terminated Management Shareholder without
Good Reason, the Termination Price for such Termination Security shall be the
purchase price paid by such Terminated Management Shareholder with respect to a
Class A Common Share,


 


(ii)                                  If (x) the
Termination Security is unvested as of the Termination Date, and (y) the
Termination Event was a termination by the Employer for Cause or a termination
by the 


 


22

















 


Terminated Management
Shareholder without Good Reason, the Termination Price for such Termination
Security shall be the lower of (1) the Fair Market Value on the FMV Calculation
Date of such Termination Security and (2) the purchase price paid by such
Terminated Management Shareholder, and


 


(iii)                               If the
Termination Security is vested as of the Termination Date, the Termination
Price for such Termination Security shall be the lower of (1) the Fair
Market Value on the FMV Calculation Date of such Termination Security and (2) the
purchase price paid by such Terminated Management Shareholder in respect of
such Termination Security.


 


(b)                                 In the event
that the Company exercises a repurchase right pursuant to Section 5.01(a),
the Company shall pay the Termination Price in cash; provided, however,
that if at the time of the closing of the purchase of such Termination
Securities, the Company is prohibited from purchasing all or any portion of
such Termination Securities (i) because restrictive covenants or other
provisions contained in the documents evidencing such entity’s or any of its
Affiliates’ indebtedness for borrowed money do not permit or allow such entity
to make such payments in cash in whole or in part; or (ii) pursuant to
applicable law, then in each case, either (x) the portion of the
Termination Price not permitted to be made in cash may be paid by the execution
and delivery by the Company of a promissory note or other deferred cash payment
arrangement (if applicable, any promissory note to be subordinated to the
indebtedness for borrowed money of such company or any of its Affiliates)
bearing interest at the prime rate, as published in the Wall Street Journal,
Eastern edition, on the first Business Day immediately prior to the day on
which such promissory note or other deferred cash payment is issued, with
principal and accrued interest payable at such time as is required in the Board’s
determination to ensure that any payment pursuant to such promissory note or
other deferred cash payment arrangement is not prohibited because of any of the
matters described in clauses (i) or (ii) of this Section 5.02(b) above
or (y) the Company may designate one or more Sponsors to purchase and
acquire from the Terminated Management Shareholder, the Termination Securities,
on the same terms and subject to the same conditions at those that would be
applicable to the Company.


 


(c)                                  In the event
that pursuant to the application of the provision of Article 5 of this
Agreement the Board determines the Fair Market Value (x) of a Termination
Security of a Terminated Management Shareholder in connection with the exercise
of its repurchase right in Section 5.01 or (y) of any Company
Equity Securities in connection with the exercise of its repurchase right in Section 5.03,
in each case, pursuant to clause (b) of the definition of Fair Market
Value (such determination, the “Board Determination”), the following provisions shall
apply:


 


(i)                                     if the
applicable Terminated Management Shareholder disagrees with the Board
Determination, such Terminated Management Shareholder may, within ten days
after receiving notice of the Board Determination, deliver a notice to the
Board disagreeing with the Board Determination.


 


(ii)                                  If the
applicable Terminated Management Shareholder delivers such a disagreement
notice to the Board in such ten-day period, such Terminated Management
Shareholder and the Board shall, during the 15 days following such delivery,
use their commercially reasonable efforts to negotiate an agreement as to the “Fair Market Value” of
such Termination Security.  If the
applicable Terminated Management Shareholder does not deliver a notice to the
Board in such ten-day period disagreeing with the Board Determination, the
Board Determination shall be final and binding on such Terminated Management
Shareholder.


 


(iii)                               If during the
15-day negotiation period described in Section 5.02(c), the
applicable Terminated Management Shareholder and the Board are unable to
negotiate an 


 


23

















 


agreement, the Company shall
promptly thereafter engage an independent appraiser or valuation firm mutually
and reasonably acceptable to such Terminated Management Shareholder and the Board
(the “Referee”)
to determine the fair market value of the Termination Security (it being
understood that in making such determination, the Referee shall be functioning
as an expert and not as an arbitrator). 
The Referee shall deliver to the applicable Terminated Management
Shareholder and the Board as promptly as practicable (but no later than 30 days
from the date of engagement of the Referee) a report setting forth its reasoned
written determination as to the fair market value of the Termination Security
(the “Referee
Determination”).  The
Referee Determination shall be final and binding upon such Terminated
Management Shareholder and the Board. 
Each party shall bear its own expenses in connection with any
application of this Section 5.02(c), except that the fees and
expenses of the Referee (including, but not limited to, the fees and expenses
of any counsel or other advisors retained by the Referee) (collectively, the “Referee Expenses”)
shall be paid as follows:


 


(A)                               if the Referee
Determination is equal to or between 95% and 105% of the Board Determination,
each of the Terminated Management Shareholder and the Company shall pay
one-half of the Referee Expenses,


 


(B)                                 if the Referee
Determination is less than 95% of the Board Determination, the Terminated
Management Shareholder shall pay the Referee Expenses, and


 


(C)                                 if the Referee
Determination is greater than 105% of the Board Determination, the Company
shall pay the Referee Expenses.


 


SECTION 5.03                    Repurchase Right Upon Breach of Restrictive Covenant
Agreement.


 


(a)                                  In the event
that, at any time during the employment of any Management Shareholder who is an
employee of the Company or any of its Subsidiaries or thereafter, such
Management Shareholder has violated the terms of any non-competition or non-solicitation
covenant applicable to such Management Shareholder, subject to applicable law
and the provisions of this Article 5, the Company shall have the right
(but not the obligation) to purchase, and if such right is exercised, such
Management Shareholder shall sell, and shall cause any Permitted Transferees of
such Management Shareholder to sell (and such Permitted Transferees shall
sell), to the Company all or any portion (as determined by the Company) of the
Company Equity Securities owned by such Management Shareholder and such
Permitted Transferees at a price per share of Company Equity Securities equal
to (i) in the case of any Class B Common Share, the Fair Market Value
thereof, and (ii) in the case of any Class A Common Share, the lower
of (1) the Fair Market Value on the FMV Calculation Date of such Class A
Common Share and (2) the purchase price paid by such Management
Shareholder therefor.  Any determination
of Fair Market Value in connection with a Company repurchase shall be subject
to the provisions of Section 5.02(c).


 


(b)                                 In the event
that the Company exercises a repurchase right pursuant to Section 5.03,
the Company shall pay the repurchase price in cash; provided, however,
that if at the time of the closing of the purchase of such Company Equity
Securities, the Company is prohibited from purchasing all or any portion of
such Company Equity Securities (i) because restrictive covenants or other
provisions contained in the documents evidencing such entity’s or any of its
Affiliates’ indebtedness for borrowed money do not permit or allow such entity
to make such payments in cash in whole or in part; or (ii) pursuant to
applicable law, then in each case, either (x) the portion of the purchase
price not permitted to be made in cash may be paid by the execution and
delivery by the Company of a promissory note or other 


 


24

















 


deferred
cash payment arrangement (if applicable, any promissory note to be subordinated
to the indebtedness for borrowed money of such company or any of its
Affiliates) bearing interest at the prime rate, as published in the Wall Street
Journal, Eastern edition, on the first Business Day immediately prior to the
day on which such promissory note or other deferred cash payment is issued,
with principal and accrued interest payable at such time as is required in the
Board’s determination to ensure that any payment pursuant to such promissory
note or other deferred cash payment arrangement is not prohibited because of
any of the matters described in clauses (i) or (ii) of this Section 5.03(b) above
or (y) the Company may designate one or more Sponsors to purchase and
acquire from the Management Shareholder, the Company Equity Securities owned by
such Management Shareholder and its Permitted Transferees, on the same terms
and subject to the same conditions at those that would be applicable to the
Company.


 


SECTION 5.04                    Termination of Repurchase Right.  Upon the occurrence of the consummation of an
IPO or a Change of Control, the repurchase rights of the Company under this Article 5
with respect to Termination Securities shall terminate except as follows:


 


(a)                                  With respect to
a Termination Security that is an unvested Class A Common Share as of the
date of the consummation of the IPO, the Company shall continue to have all
rights pursuant to this Article 5 until such Termination Security (or part
thereof) vests, at which point the rights of the Company pursuant to this Article 5
with respect to such Termination Security (or part thereof) shall terminate;
and


 


(b)                                 With respect to
a Termination Security that is a vested Class A Common Share, if prior to
the first anniversary of the consummation of the IPO, the employment of a
Management Shareholder with the Company or any of its Subsidiaries terminates
and the Termination Event is a termination by the Employer for Cause, all
rights pursuant to this Article 5 shall remain in effect and be applicable
to such Termination Event.


 


ARTICLE 6


 


REGISTRATION
RIGHTS


 


SECTION 6.01                    Demand Registration.


 


(a)                                  Subject to the
restrictions set forth herein, if at any time the Company receives a written
request from the CCMP Funds (as such, the “Requesting Shareholder”) that the Company
effect the registration under the Securities Act of all or any portion of the
Sponsors’ Registrable Securities, and specifying the intended method of
disposition thereof (each such request shall be referred to herein as a “Demand Registration”),
then, within five Business Days, the Company shall promptly give notice of such
Demand Registration to the other Investors and thereupon shall use its best
efforts to effect, as expeditiously as possible, the registration under the
Securities Act of all Registrable Securities for which the Requesting
Shareholder have requested registration under this Section 6.01; provided that the Company shall not be
obligated to effect (a) more than five (5) Demand Registrations by
the CCMP Funds, (b) any Demand Registration unless the aggregate gross
proceeds expected to received from the sale of the Registrable Securities
requested to be included by the Requesting Shareholder in such Demand
Registration are at least $25 million (unless such Registrable Securities
identified in the Demand Registration constitute all remaining Registrable
Securities held by the Requesting Shareholder), or (c) more than one
Demand Registration during any six-month period.


 


(b)                                 Notwithstanding
the foregoing, the Company may delay the filing of a registration statement, or
suspend the continued use of a registration statement, required by Section 6.01



 


25

















 


(i) for
a period up to 90 days after the request to file a registration statement if at
the time the Company receives the request to register Registrable Securities,
the Company or any of its Subsidiaries are engaged in confidential negotiations
or other confidential business activities, disclosure of which would be
required in such registration statement (but would not be required if such
registration statement were not filed), and the Board determines in good faith,
after consultation with external legal counsel, that such disclosure would have
a material adverse effect on the Company or its business or on the Company’s
ability to effect a proposed material acquisition, disposition, financing,
reorganization, recapitalization or similar transaction and (ii) for a
period of time required by an underwriting agreement relating to a Public
Offering of newly issued shares by the Company; provided that such period of time shall not exceed 90 days
from the date of such underwriting agreement. 
A deferral of the filing of a registration statement, or the suspension
of the continued use of a registration statement, pursuant to this Section 6.01(b),
shall be lifted, and the requested registration statement shall be filed
forthwith, if, in the case of a deferral, the negotiations or other activities
are disclosed or terminated.  In order to
defer the filing of a registration statement, or suspend the continued use of a
registration statement, pursuant to this Section 6.01(b), the
Company shall promptly (but in any event within five days), upon determining to
seek such deferral or suspension, deliver to the Requesting Shareholder a
certificate signed by an executive officer of the Company stating that the
Company is deferring such filing, or suspending the continued use of a
registration statement, pursuant to this Section 6.01(b) and a
general statement of the reason for such deferral or suspension, as the case
may be, and an approximation of the anticipated delay.  The Company may defer the filing, or suspend
the continued use of, a particular registration statement pursuant to this Section 6.01(b) no
more than twice and for no more than 120 days in the aggregate in any
twelve-month period; provided that there must be an interim period of at least
60 days between the end of one deferral or suspension period and the beginning
of a subsequent deferral or suspension period. 
The Company agrees, that in the event it exercises its rights under this
Section 6.01(b), it shall, within seven days following receipt by
the holders of Registrable Securities of the notice of deferral or suspension,
as the case may be, update the deferred or suspended registration statement as
may be necessary to permit the holders of Registrable Securities to resume use
thereof in connection with the offer and sale of their Registrable Securities
in accordance with applicable law.


 


(c)                                  At any time
prior to the effective date of the registration statement relating to such Demand
Registration, the Requesting Shareholder may revoke in writing such request,
without liability to any Person, by providing a notice to the Company revoking
such request; provided, however, that no such withdrawn demand
request shall be deemed to have been a Demand Registration if (i) such
demand request is withdrawn prior to the filing by the Company of a
registration statement pursuant thereto, or (ii) such withdrawal is due to
the disclosure of material adverse information relating specifically to the Company
that was not known by the Requesting Shareholder at the time it submitted its
demand request, provided, that,
in either event, the Requesting Shareholder elects to bear all expenses
associated with such withdrawn demand request and the registration statement
pursuant thereto.


 


(d)                                 Except as
expressly set forth herein, the Company shall be liable for and pay all
Registration Expenses in connection with each Demand Registration, regardless
of whether such Registration is effected.


 


(e)                                  A Demand Registration
shall not be deemed to have occurred unless the registration statement relating
thereto (A) has become effective under the Securities Act, and (B) has
remained effective for a period of at least 180 days (or such shorter period in
which all Registrable Securities of the Requesting Shareholder included in such
registration have actually been sold thereunder); provided that such registration statement shall not be
considered a Demand Registration if, after such registration statement becomes
effective, (1) such registration statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or other
governmental agency or court, and (2) less than 75% of the Registrable
Securities included in such registration statement have 


 


26

















 


been
sold thereunder; or if the Maximum Offering Size is reduced in accordance with Section 6.01(f) such
that less than 75% of the Registrable Securities of the Requesting Shareholder
sought to be included in such registration are included.


 


(f)                                    If a Demand
Registration involves a Public Offering and the managing underwriter advises
the Company and the Requesting Shareholder that, in its view, the number of
Registrable Securities that the Company and any other Person (if any) propose
to include in such registration exceeds the largest number of Registrable
Securities that can be sold without having an adverse effect on such offering,
including the price at which such shares can be sold (the “Maximum Offering Size”),
the Company shall include in such registration, in the priority listed below,
up to the Maximum Offering Size:


 


(i)                                     first, all
Registrable Securities requested to be registered by the Requesting
Shareholder;


 


(ii)                                  second, all
Registrable Securities requested to be included in such registration by any
Registering Investors exercising piggyback registration rights pursuant to Section 6.02(a)(ii) pro
rata among such Registering Investors based on their relative number of
Registrable Securities requested to be included in the Piggyback Registration,
and


 


(iii)                               third, all
Registrable Securities proposed to be registered for the account of the
Company.


 


SECTION 6.02                    Piggyback Registration.


 


(a)                                  If, after the
IPO, the Company proposes to register any Company Equity Securities under the
Securities Act (whether for itself or otherwise in connection with a sale of
securities by another Person, but other than in connection with a registration
on a Form S-4 in connection with a direct or indirect acquisition by the
Company of another Person or a registration on a Form S-8), the Company
shall at each such time give prompt written notice at least 10 days prior to
the anticipated filing date of the registration statement relating to such
registration to each Investor holding at least one percent (1%) of the
outstanding Registrable Securities hereunder, which notice shall set forth such
Investor’s rights under this Section 6.01 and shall offer such
Investor the opportunity to include in such registration statement all or any
portion of the Registrable Securities held by such Investor (a “Piggyback Registration”),
subject to the restrictions set forth herein. 
Upon the request of any such Investor (a “Registering Investor”) made within 10
days after the receipt of notice from the Company (which request shall specify
the number of Registrable Securities intended to be registered by such
Registering Investor), the Company shall use its best efforts to effect the
registration under the Securities Act of all Registrable Securities that the
Company has been so requested to register by all Registering Investors to the
extent requisite to permit the disposition of the Registrable Securities so to
be registered; provided that if
such registration involves a Public Offering, all such Registering Investors
requesting to be included in the Company’s registration must sell their
Registrable Securities to the underwriters on the same terms and conditions as
apply to the Company or any other selling shareholders; provided, however,
that no such Registering Investor shall be required to make any representations
or warranties, or provide any indemnity, in connection with any such
registration other than representations and warranties (or indemnities with
respect thereto) as to (i) such Registering Investor’s ownership of his or
her Registrable Securities to be transferred free and clear of all liens,
claims, and encumbrances, (ii) such Registering Investor’s power and
authority to effect such transfer, and (iii) such matters pertaining to
compliance with securities laws by such Registering Investor as may be
reasonably requested; provided, further, however,
that the obligation of such Registering Investor to indemnify pursuant to any
such underwriting arrangements shall be several, not joint and several, among
all Persons selling Registrable Securities in 


 


27

















 


such
registration, and the liability of each such Registering Investor will be in
proportion thereto, and provided,
further, that such liability will
be limited to the net amount received by such Registering Investor from the
sale of his or her Registrable Securities pursuant to such registration.  If, at any time after giving notice of its
intention to register any Registrable Securities pursuant to this Section 6.02(a) and
prior to the effective date of the registration statement filed in connection
with such registration, the Company or the initiating shareholders, as
applicable, shall determine for any reason not to register such securities, the
Company shall give notice to all such Registering Investors and, thereupon,
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration.  The
Company shall be liable for and pay all Registration Expenses in connection
with each Piggyback Registration, regardless of whether such registration is
effected.


 


(b)                                 If a Piggyback
Registration involves a Public Offering and the managing underwriter advises
the Company that, in its view, the number of Registrable Securities that the
Company and any selling shareholders with rights to require registration of
Registrable Securities propose to include in such registration exceeds the
largest number of Registrable Securities that can be sold without having an
adverse effect on such offering, including the price at which such Registrable
Securities can be sold (the “Piggyback Maximum Offering Size”), the Company shall
include in such Piggyback Registration, in the following priority, up to the
Piggyback Maximum Offering Size:


 


(i)                                   with respect to
a Public Offering by the Company for its own account:


 


(A)                               first, such
number of Registrable Securities proposed to be registered for the account of
the Company, if any, as would not cause the offering to exceed the Piggyback
Maximum Offering Size, and


 


(B)                                 second, all
Registrable Securities requested to be included in such registration by any
Registering Investors exercising piggyback registration rights pursuant to this
Section 6.02(b)(i) pro rata among such Registering Investors
based on their relative number of Registrable Securities requested to be
included in the Piggyback Registration, and


 


(ii)                                With respect to
a Public Offering by the Company for the account of selling shareholders:


 


(A)                               all Registrable
Securities requested to be included in such registration by any shareholders
with rights to require registration of Registrable Securities,


 


(B)                                 second, all
Registrable Securities requested to be included in such registration by any
Registering Investors exercising piggyback registration rights pursuant to this
Section 6.02(b)(ii) pro rata among such Registering Investors
based on their relative number of Registrable Securities requested to be
included in the Piggyback Registration, and


 


(C)                                 third, all
Registrable Securities proposed to be registered for the account of the
Company.


 


(c)                                  Notwithstanding
anything to the contrary contained herein, the provisions of this Section 6.02
shall not be applicable with respect to the IPO or any shelf registration
(including any shelf registration under Section 6.03) or with
respect to any resales of securities pursuant to any such shelf registration.


 


28














 


SECTION 6.03                    Shelf
Registrations.


 


(a)                                  At any time
after the one year anniversary of the consummation by the Company of the IPO,
upon receipt of a written request (the “Shelf Request”) from the CCMP Funds that the
Company file a “shelf”
registration statement pursuant to Rule 415 under the Securities Act (the “Shelf Registration”)
on Form S-3 (or any successor form to Form S-3, or any similar
short-form registration statement), covering the resale of Registrable
Securities, the reasonably anticipated gross proceeds from all resales covered
thereunder of which would exceed $25 million, the Company shall use its
reasonable best efforts consistent with the terms of this Agreement to (i) cause
the Shelf Registration to be filed with the SEC as soon as practicable (but in
no event later than 30 days of its receipt of the Shelf Request) and to include
all Registrable Securities held by the Sponsors to be registered on such form,
and (ii) cause such Shelf Registration to be declared effective by the SEC
as soon as possible.  As soon as
reasonably practicable after the IPO, the Company will use its reasonable best
efforts, consistent with the terms of this Agreement, to qualify for and remain
eligible to use Form S-3 registration or a similar short-form
registration.  The provisions of Section 6.05
shall be applicable to each Shelf Registration initiated under this Section 6.03
and any subsequent resale of Registrable Securities pursuant thereto; provided, that the gross proceeds
therefrom equal at least $25 million.


 


(b)                                 In connection
with any proposed underwritten resale of Registrable Securities which is not
pursuant to a Demand Registration under Section 6.01 (an “Underwritten Shelf Takedown”)
pursuant to a Shelf Registration, the CCMP Funds agree, in an effort to conduct
any such Underwritten Shelf Takedown in the most efficient and organized
manner, to coordinate with the Company prior to initiating any sales efforts
and cooperate with the Company as to the terms and consummation of such
Underwritten Shelf Takedown.


 


(c)                                  The Company
shall be liable for and pay all Registration Expenses in connection with each
Shelf Registration, regardless of whether such Shelf Registration is effected,
and any Underwritten Shelf Takedown; provided
that the Sponsors shall be responsible for any brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of the Registrable
Securities of the Sponsors.


 


SECTION 6.04                    Lock-Up Agreements.  In connection with each underwritten Public
Offering, if requested by the managing underwriter, each Management Shareholder
agrees not to effect any public sale or private offer or distribution of any
Registrable Securities during the 10 days prior to the consummation of such
Public Offering and during such time period after the consummation of such
Public Offering, not to exceed 90 days (180 days in the case of the IPO and 30
days in the case of an underwritten resale of securities pursuant to any shelf
registration); provided that the
time periods provided for in this sentence in respect of each Management
Shareholder shall not be any greater than the time periods requested by the
managing underwriter in respect of any other Investor in connection with such Public
Offering.


 


SECTION 6.05                    Registration Procedures.  Whenever any Investor request that any
Registrable Securities be registered pursuant to Section 6.01, 6.02
or 6.03, subject to the provisions of such Section, the Company shall
use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof as quickly as practicable, and, in connection with any such request:


 


(a)                                  The Company
shall, as expeditiously as possible, prepare and file with the SEC a
registration statement on any form for which the Company then qualifies and the
managing underwriter, if any, and the holders of a majority of the Registrable
Securities to be registered thereunder shall deem appropriate and which form
shall be available for the sale of the Registrable Securities to be registered


 


29

















 


thereunder
in accordance with the intended method of distribution thereof, and use its
best efforts to cause such filed registration statement to become and remain
effective for a period of not less than 180 days or in the case of a Shelf
Registration, not less than two years (or such shorter period in which all of
the Registrable Securities of the Investors included in such registration
statement shall have actually been sold thereunder); provided, however,
that such 180-day period or two year period, as applicable, shall be extended
for a period of time equal to the period any Investor refrains from selling any
securities included in such registration at the request of an underwriter and
in the case of any Shelf Registration, subject to compliance with applicable
SEC rules, such two year period shall be extended, if necessary, to keep the
registration statement effective until all such Registrable Securities are
sold.


 


(b)                                 Prior to filing
a registration statement or prospectus or any amendment or supplement thereto,
the Company shall furnish to each participating Investor such number of copies
of such registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 or Rule 430A under the Securities Act
and such other documents as such Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
Investor.


 


(c)                                  After the
filing of the registration statement, the Company shall (i) cause the
related prospectus to be supplemented by any required prospectus supplement,
and, as so supplemented, to be filed pursuant to Rule 424 under the
Securities Act, (ii) comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by the Requesting Shareholder and/or the
Registering Investors thereof set forth in such registration statement or
supplement to such prospectus and (iii) promptly notify the Requesting
Shareholder and/or each Registering Investor holding Registrable Securities
covered by such registration statement of any stop order issued or threatened
by the SEC or any state securities commission and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.


 


(d)                                 The Company
shall use its best efforts to (i) register or qualify the Registrable
Securities covered by such registration statement under such other securities
or “blue sky” laws of such
jurisdictions in the United States as any Requesting Shareholder and/or
Registering Investor holding such Registrable Securities reasonably (in light
of such Requesting Shareholder’s and/or Registering Investor’s intended plan of
distribution) requests and (ii) cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company and
do any and all other acts and things that may be reasonably necessary or
advisable to enable such Requesting Shareholder and/or Registering Investor to
consummate the disposition of the Registrable Securities owned by such
Requesting Shareholder and/or Registering Investor; provided that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 6.03(d), (B) subject
itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.


 


(e)                                  The Company
shall immediately notify the Requesting Shareholder and/or each Registering
Investor holding such Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an 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 promptly prepare and make


 


30

















 


available
to the Requesting Shareholder and/or each such Registering Investor and file
with the SEC any such supplement or amendment.


 


(f)                                    Except for a
Demand Registration or an Underwritten Shelf Takedown, the Board shall have the
right to select the underwriter or underwriters in connection with any Public
Offering.  In connection with the
offering of Registrable Securities pursuant to a Demand Registration, the
Requesting Shareholder shall have the right, in its sole discretion, to select
the underwriter or underwriters.  In
connection with any Public Offering, the Company shall enter into customary
agreements (including an underwriting agreement in customary form, provided
that the scope of the indemnity contained in such underwriting agreement is not
more extensive than the indemnity described in Section 6.07 hereof),
provided that such agreements are consistent with this Agreement, and take all
such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities in any such Public
Offering, including the engagement of a “qualified independent underwriter” in
connection with the qualification of the underwriting arrangements with the
NASD.  Each Investor participating in
such underwriting shall also enter into such agreement, provided that the terms
of any such agreement are consistent with this Agreement; provided, however,
that no such Investor shall be required to make any representations or
warranties, or provide any indemnity, in connection with any such registration
other than representations and warranties (or indemnities with respect thereto)
as to (i) such Person’s ownership of his, her or its Registrable
Securities to be transferred free and clear of all liens, claims, and
encumbrances, (ii) such Person’s power and authority to effect such
transfer, and (iii) such matters pertaining to compliance with securities
laws by such Investor as may be reasonably requested; provided, further,
however, that the obligation of
such Person to indemnify pursuant to any such underwriting arrangements shall
be several, not joint and several, among such Persons selling Registrable
Securities, and the liability of each such Person will be in proportion
thereto; and provided, further, that such liability will be
limited to, the net amount received by such Person from the sale of his or its
Registrable Securities pursuant to such registration.


 


(g)                                 Upon execution
of confidentiality agreements in form and substance reasonably satisfactory to
the Company, the Company shall make available for inspection by any Requesting
Shareholder, Registering Investor and any underwriter participating in any
disposition pursuant to a registration statement being filed by the Company
pursuant to this Section 6.05 and any attorney, accountant or other
professional retained by any such Investor or underwriter (collectively, the “Inspectors”), all
financial and other records, pertinent corporate documents and properties of
the Company (collectively, the “Records”) as shall be reasonably necessary or desirable
to enable them to exercise their due diligence responsibility, and cause the Company’s
officers, directors and employees to supply all information reasonably
requested by any Inspectors in connection with such registration
statement.  Records that the Company
determines, in good faith, to be confidential and that it notifies the Inspectors
are confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a misstatement or
omission in such registration statement or (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is otherwise required by law.  Each Investor agrees that at the time that
such Investor is a Requesting Shareholder and/or a Registering Investor, information
obtained by it as a result of such inspections shall be deemed confidential and
shall not be used by it or its Affiliates as the basis for any market
transactions in Common Shares unless and until such information is made
generally available to the public, and further agrees that, upon learning that
disclosure of such Records is sought in a court of competent jurisdiction, it
shall give notice to the Company and allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential.


 


(h)                                 The Company
shall cause to be furnished to the Requesting Shareholder and/or each
Registering Investor and to each such underwriter, if any, a signed
counterpart, addressed to such Investor or underwriter, of an opinion or
opinions of counsel to the Company in customary form and


 


31

















 


covering
such matters of the kind customarily covered by opinions as a majority of such
Investors or the managing underwriter therefor reasonably requests.


 


(i)                                     The Company shall
otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon as
reasonably practicable, an earnings statement or such other document that shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.


 


(j)                                     The Company may
require the Requesting Shareholder and/or each such Registering Investor, by
written notice given to the Requesting Shareholder and each such Registering
Investor (as applicable) not less than 10 days prior to the filing date of such
registration statement, to promptly, and in any event within 7 days after
receipt of such notice, furnish in writing to the Company such information
regarding the distribution of the Registrable Securities as the Company may
from time to time request and such other information as may be legally required
in connection with such registration.


 


(k)                                  Each Investor
agrees that at the time that such Investor is a Requesting Shareholder and/or a
Registering Investor, upon receipt of any written notice from the Company of
the occurrence of any event requiring the preparation of a supplement or
amendment of a prospectus relating to the Registrable Securities covered by a
registration statement that is required to be delivered under the Securities
Act so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or to
make the statements therein not misleading, such Investor shall forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Investor’s receipt of
the copies of a supplemented or amended prospectus, and, if so directed by the
Company, such Investor shall deliver to the Company all copies, other than any
permanent file copies then in such Investor’s possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice.  If the Company shall give such
notice, the Company shall extend the period during which such registration
statement shall be maintained effective by the number of days during the period
from and including the date of the giving of notice pursuant to Section 6.03(e) to
the date when the Company shall make available to such Investor a prospectus
supplemented or amended to conform with the requirements of Section 6.03(e).


 


(l)                                     The Company
shall use its reasonable best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange or quotation
system on which any of the Registrable Securities are then listed or traded and
if none of the Registrable Securities are so listed, on any securities exchange
or quotations system on which similar securities issued by the Company are then
listed, and if no Common Shares are listed, on any national securities exchange
or on the NASDAQ.


 


(m)                               The Company
shall have appropriate officers of the Company (i) prepare and make
presentations at any “road shows” and before analysts and rating agencies, as
the case may be, (ii) take other reasonable actions to obtain ratings for
any Registrable Securities and (iii) otherwise use their reasonable
efforts to cooperate as requested by the underwriters in the offering,
marketing or selling of the Registrable Securities.


 


SECTION 6.06                    Indemnification by the Company.  The Company agrees to indemnify and hold
harmless each Investor, solely in its capacity as a selling shareholder, from
and against any and all losses, claims, damages, liabilities and expenses
(including reasonable expenses of investigation and reasonable attorneys’ fees
and expenses) (“Damages”)
caused by or relating to any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if the Company shall
have


 


32

















 


furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by or relating to
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 or
caused by or related to any violation or alleged violation of the Securities
Act or Exchange Act, except insofar as such Damages are caused by or related to
any such untrue statement or omission or alleged untrue statement or omission so
made in reliance upon and in conformity with information furnished in writing
to the Company by such Investor or on such Investor’s behalf, solely in its
capacity as a selling shareholder, expressly for use therein, provided that,
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, or in any prospectus, as the case
may be, the indemnity agreement contained in this paragraph shall not apply to
the extent that any Damages result from the fact that a current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be) was
not sent or given to the Person asserting any such Damages at or prior to the
written confirmation of the sale of the Registrable Securities concerned to
such Person if it is determined that the Company has provided such prospectus
to such Investor and it was the responsibility of such Investor to provide such
Person with a current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) and such current copy of the prospectus (or
such amended or supplemented prospectus, as the case may be) would have cured
the defect giving rise to such Damages.


 


SECTION 6.07                    Indemnification by the Participating Investors.  Each Investor, at the time that such Investor
is a Requesting Shareholder and/or a Registering Investor holding Registrable
Securities included in any registration statement agrees, severally but not
jointly, to indemnify and hold harmless from and against all Damages the
Company, its officers, directors and agents and each Person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (i) with respect to
information furnished in writing to the Company by such Investor or on such
Investor’s behalf, solely in its capacity as selling shareholder, expressly for
use in any registration statement or prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary
prospectus or (ii) to the extent that any Damages result from the fact
that a current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) was not sent or given to the Person asserting
any such Damages at or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is determined that it was
the responsibility of such Investor to provide such Person with a current copy
of the prospectus (or such amended or supplemented prospectus, as the case may
be) and such current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) was available to such Investor and would have
cured the defect giving rise to such Damages. 
As a condition to including Registrable Securities in any registration
statement filed in accordance with Article 6, the Company may require that it
shall have received an undertaking reasonably satisfactory to it from any
underwriter to indemnify and hold it harmless to the extent customarily
provided by underwriters with respect to similar securities.  No Investor shall be liable under this Section 6.07
for any Damages in excess of the net proceeds realized by such Investor in the
sale of Registrable Securities of such Investor to which such Damages relate.


 


SECTION 6.08                    Conduct of Indemnification Proceedings.  If any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Article 6, such Person (an “Indemnified Party”)
shall promptly notify the Person against whom such indemnity may be sought (the
“Indemnifying Party”)
in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses, provided that the
failure of any Indemnified Party so to notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations hereunder except to the
extent that the Indemnifying Party is materially prejudiced by such failure to
notify.  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


 


33

















 


agreed to the retention of
such counsel or (ii) in the reasonable judgment of such Indemnified Party,
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them.  It is understood that, in connection with any
proceeding or related proceedings in the same jurisdiction, the Indemnifying
Party shall not be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be reimbursed
as they are incurred.  In the case of any
such separate firm for the Indemnified Parties, such firm shall be designated
in writing by the Indemnified Parties. 
The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any Damages (to the extent
stated above) by reason of such settlement or judgment.  Without the prior written consent of the
Indemnified Party, no Indemnifying Party shall effect any settlement of any
pending or threatened proceeding 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 arising out of such proceeding.


 


SECTION 6.09                    Contribution.


 


(a)                                  If the
indemnification provided for in this Article 6 is unavailable to the
Indemnified Party or insufficient in respect of any Damages (other than by
reason of the exceptions provided herein), then each such Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Damages, as
between the Company on the one hand and each such Investor on the other, in
such proportion as is appropriate to reflect the relative fault of the Company
and of each such Investor in connection with such statements or omissions, as
well as any other relevant equitable considerations.  The relative fault of the Company on the one
hand and of each such Investor on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.


 


(b)                                 The Company and
the Investors agree that it would not be just and equitable if contribution
pursuant to this Section 6.09 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph.  The amount paid or payable by
an Indemnified Party as a result of the Damages referred to in the immediately
preceding paragraph 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 6.09, no Investor shall be required to contribute
any amount in excess of the amount by which the net proceeds realized by such
Investor in the sale of Registrable Securities of such Investor to which such
Damages relate exceeds the amount of any Damages that such Investor has
otherwise been required to pay by reason of such untrue or alleged 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.  Subject to the foregoing and as among the
Investors, each Investor’s obligation to contribute pursuant to this Section 6.09
is several in the proportion that the proceeds of the offering received by such
Investor bears to the total proceeds of the offering received by all such
Investors and not joint.


 


34

















 


SECTION 6.10                    Cooperation by the Company.  With a view to making available to the
Investors the benefits of certain rules and regulations of the SEC that
may at any time permit the sale of securities to the public without registration,
the Company agrees to use its best efforts to:


 


(a)                                  make and keep
public information available, as those terms are defined in Rule 144, at
all times after the effective date that the Company becomes subject to the
reporting requirements of the Securities Act or the Exchange Act;


 


(b)                                 file with the
SEC in a timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements);


 


(c)                                  furnish to any
Investor, so long as such Investor owns any Registrable Securities, upon
request by such Investor, (i) a written statement by the Company that it
has complied with the reporting requirements of Rule 144 (at any time
after 90 days after the effective date of the first registration statement
filed by the Company for a Public Offering), and of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements) or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and (iii) such
other reports and documents of the Company and other information in the
possession of or reasonably obtainable by the Company as a Investor may
reasonably request in availing itself of any rule or regulation of the SEC
allowing a Investor to sell any such securities without registration; and


 


(d)                                 upon the
request of any Investor, instruct the transfer agent in writing that it shall
rely on the written legal opinion such Investor’s counsel, and shall act in
accordance with the written instructions of such Investor’s counsel, with
respect to any transfer of Company Equity Securities.


 


SECTION 6.11                    Restriction on
Company Grants of Registration Rights.  The Company agrees that, without the prior
written consent of the CCMP Funds, it shall not enter into any agreement with
the holder or prospective holder of Company Equity Securities with respect to
any registration rights.


 


ARTICLE 7


 


CERTAIN
COVENANTS AND AGREEMENTS


 


SECTION 7.01                    Confidentiality.


 


(a)                                  To the extent
any Investor is a Permitted Transferee of a Management Shareholder, such
Investor agrees that it shall (i) hold confidential and not disclose,
without the prior written consent of the CCMP Representatives, all confidential
or proprietary written, recorded or oral information or data (including
research, developmental, engineering, manufacturing, technical, marketing,
sales, financial, operating, performance, cost, business and process
information or data, know how and computer programming and other software
techniques) provided or developed by the Company and any of its Subsidiaries,
another Investor or any of their Affiliates, officers, directors, partners,
legal counsel, agents and representatives (collectively, its “Confidentiality Affiliates”)
in connection herewith or with the Business, whether such confidentiality or
proprietary status is indicated orally or in writing or in a context in which
the Company, any of its Subsidiaries, the disclosing Investor or any of their
Confidentiality Affiliates reasonably communicated, or the receiving Management
Shareholder should reasonably have understood, that the information should be
treated as confidential, whether or not the specific words “confidential” or “proprietary” are used (“Confidential Information”)
and (ii) use such


 


35

















 


Confidential
Information only for the purposes of performing its obligations hereunder to
which it is a party and monitoring its investment in the Company; provided, however,
that a Management Shareholder may disclose any such Confidential Information on
a confidential basis to current and prospective lenders in connection with a
loan or prospective loan to such Management Shareholder and to prospective
purchasers of Company Equity Securities from such Management Shareholder, as
well as to their legal counsel, auditors, agents and representatives.


 


(b)                                 The obligations
contained in Section 7.01(a) shall not apply, or shall cease
to apply, to Confidential Information if or when, and to the extent that, such
Confidential Information (i) was, or becomes through no breach of the
receiving Management Shareholder’s obligations hereunder, known to the public, (ii) becomes
known to the receiving Management Shareholder from other sources under
circumstances not involving any breach of any confidentiality obligation
between such source and the disclosing Management Shareholder’s or a third
party, or (iii) is required to be disclosed by law, governmental
regulation or applicable legal process.


 


SECTION 7.02                    Conflicting Agreements.  Each Management Shareholder represents and
agrees that it shall not (i) grant any proxy or enter into or agree to be
bound by any voting trust or agreement with respect to the Company Equity
Securities, except as expressly contemplated by this Agreement, (ii) enter
into any agreement or arrangement of any kind with any Person with respect to
its Company Equity Securities inconsistent with the provisions of this
Agreement or for the purpose or with the effect of denying or reducing the
rights of any other Investor under this Agreement, including agreements or
arrangements with respect to the Transfer or voting of its Company Equity
Securities or (iii) act, for any reason, as a member of a group or in
concert with any other Person in connection with the Transfer or voting of its
Company Equity Securities in any manner that is inconsistent with this
Agreement.


 


SECTION 7.03                    Information
Rights.


 


(a)                                  Financial
Statements and Other Information.  (i) The
Company shall deliver to any requesting Investor, so long as such Investor owns
at least 5% of the Class B Common Shares then outstanding, the following
information:


 


(A)                               as soon as is
available and in any event within 30 days after the end of each month of each
fiscal year of the Company, consolidated balance sheets of the Company and any
Subsidiary of the Company as of the end of such period, and consolidated statements
of income and cash flows of the Company and any Subsidiary of the Company for
the period then ended, prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis,
except as otherwise noted therein, and subject to the absence of footnotes and
to year-end adjustments;


 


(B)                                 as soon as is
available and in any event within 45 days after the end of each of the first
three quarters of each fiscal year of the Company, consolidated balance sheets
of the Company and any Subsidiary of the Company as of the end of such period,
and consolidated statements of income and cash flows of the Company and any
Subsidiary of the Company for the period then ended, prepared in conformity
with generally accepted accounting principles in the United States applied on a
consistent basis, except as otherwise noted therein, and subject to the absence
of footnotes and to year-end adjustments;


 


36

















 


(C)                                 as soon as is
available and in any event within 120 days after the end of each fiscal year of
the Company, a consolidated balance sheet of the Company and any Subsidiaries
of the Company as of the end of such year, and consolidated statements of
income and cash flows of the Company and any Subsidiary of the Company for the
year ended prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis, except as otherwise noted
therein, together with an auditor’s report thereon of a firm of established
national reputation; and


 


(D)                                to the extent
the Company is required by law or pursuant to the terms of any of the Company’s
or any of the Company’s Subsidiaries’ material debt agreements, indentures and
other agreements or instruments evidencing material indebtedness of the Company
or any of its Subsidiaries to prepare such reports, any annual reports,
quarterly reports and other periodic reports pursuant to Section 13 or 15(d) of
the Exchange Act, as amended, such reports actually prepared by the Company as
soon as available.


 


(b)                                 Other
Information.  The Company
and any Subsidiary of the Company shall provide to each of the Sponsors, and as
applicable create and/or generate, any information as the CCMP Representative
may reasonably request, including true and correct copies of all applicable
documents, reports, financial data and other information relevant thereto.


 


SECTION 7.04                    IPO Cooperation.  Prior to and in connection with the IPO, each
of the Investors and the Company covenants and agrees to cooperate with each
other and to take such action as shall be necessary to permit the conversion of
the Class B Common Shares into validly authorized and issued, fully paid
and nonassessable shares of class A common stock of the Company, as contemplated
by the Certificate of Incorporation of the Company (the “Conversion”)
including, without limitation, by executing such agreements, consents,
certificates and documents as shall be necessary or appropriate to ensure that
the number of authorized Class A Common Shares is and will be sufficient
to permit (and immediately after giving effect to) the Conversion.  For the avoidance of doubt, and without
limiting the foregoing, the Investors and the Company shall execute or cause to
be executed all board of director, shareholder and other consents as shall be
required in order to amend the Certificate of Incorporation of the Company and
to authorize such number of Class A Common Shares as shall be necessary to
permit the Conversion on the terms contemplated by the Certificate of
Incorporation of the Company.


 


ARTICLE 8


 


MISCELLANEOUS


 


SECTION 8.01                    CCMP Representative.


 


For purposes of this Agreement, the CCMP Funds and,
upon their becoming a Sponsor, their Sponsor Permitted Transferees, hereby
consent to the appointment of CCMP Capital Investors II, L.P., as
representative (the “CCMP
Representative”) of the CCMP Funds and such Sponsor Permitted
Transferees, and as attorney-in-fact for and on behalf of the CCMP Funds and
such Sponsor Permitted Transferees, and, subject to the express limitations set
forth below, the taking by the CCMP Representative of any and all actions and
the making of any decisions required or permitted to be taken by the CCMP Funds
and such Sponsor Permitted Transferees under this Agreement.  The CCMP Representative will have unlimited
authority and power to act on behalf of the CCMP Funds and such Sponsor
Permitted Transferees with respect to this Agreement and the disposition
(including without 


 


37

















 


limitation pursuant to Section 4.01
and Section 4.02), settlement or other handling of all claims,
rights or obligations arising under this Agreement so long as all CCMP Funds
and such Sponsor Permitted Transferees are treated in the same manner.  The CCMP Funds and such Sponsor Permitted
Transferees will be bound by all actions taken by the CCMP Representative in
connection with this Agreement.  In
performing its functions hereunder, the CCMP Representative will not be liable
to the CCMP Funds and such Sponsor Permitted Transferees in the absence of
gross negligence or willful misconduct. 
The Company, the Sponsors and the Management Shareholders shall be
permitted to rely on any act of the CCMP Representative as the binding act of
and on behalf of all of the CCMP Funds and such Sponsor Permitted Transferees.


 


SECTION 8.02                    Binding Effect; Assignability; Benefit.


 


(a)                                  This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, legal representatives and permitted assigns.  Any Management Shareholder that ceases to
beneficially own any Company Equity Securities shall cease to be bound by the
terms hereof (other than as expressly set forth herein or with respect to Section 7.01
or Article 8).


 


(b)                                 Other than as
expressly set forth herein, neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by any party hereto pursuant to any Transfer of Company Equity
Securities or otherwise. Any Person acquiring Company Equity Securities that is
required or permitted by the terms of this Agreement to become a party hereto
shall (unless already bound hereby) execute a Joinder Agreement and shall
thenceforth be a “Management
Shareholder.”


 


(c)                                  Nothing in this
Agreement, expressed or implied, is intended to confer on any Person other than
the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.


 


SECTION 8.03                    Legal Representation for Management Shareholders.  Reinhart Boerner Van Deuren s.c. (“Counsel”) has been
retained by certain Management Shareholders who have executed an
acknowledgement of the terms of that certain September 21, 2006 engagement
letter in connection with the transactions contemplated by this Agreement.  All Management Shareholders have had the
opportunity to seek legal advice from Counsel on this Agreement and the transactions
contemplated hereby.


 


SECTION 8.04                    Notices.  All notices, requests and other
communications to any party shall be in writing and shall be delivered in
person, mailed by certified or registered mail, return receipt requested, or
sent by facsimile transmission,


 


If
to any of the Company, to:


 


Generac Power Systems, Inc.


P.O. Box 295


Waukesha, WI  53187


Attention:  Chief Executive
Officer


 


with a copy to:


 


GPS CCMP Acquisition Corp.


c/o
CCMP Capital Advisors, LLC


 


38

















 


245
Park Avenue, 16th Floor


New
York, NY  10167


Attention:  Stephen Murray


 


If
to a Management Shareholder, to him or her at the address listed on his or her
signature page hereto.


 


If
to the CCMP Funds, to:


 


CCMP Capital Advisors, LLC


245 Park Avenue


16th Floor


New York, New York 10167


Attn: 
Stephen Murray


Facsimile: 
(917) 464-9200


 


or, in each case, at such other address or
fax number as such party may hereafter specify for the purpose of notices
hereunder by written notice to the other parties hereto.  All notices, requests and other
communications shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5:00 p.m. in the place of receipt and such
day is a Business Day in the place of receipt. 
Otherwise, any such notice, request or communication shall be deemed not
to have been received until the next succeeding Business Day in the place of
receipt.  Any notice, request or other
written communication sent by facsimile transmission shall be confirmed by
certified or registered mail, return receipt requested, posted within one
Business Day, or by personal delivery, whether courier or otherwise, made
within two Business Days after the date of such facsimile transmissions; provided that such confirmation mailing or
delivery shall not affect the date of receipt, which will be the date that the
facsimile successfully transmitted the notice, request or other
communication.  Any Person that hereafter
becomes a Management Shareholder shall provide its address and fax number to
the Company.


 


SECTION 8.05                    Waiver; Amendment.


 


No provision of this Agreement may be waived,
amended or otherwise modified except by an instrument in writing executed by (i) the
Company, (ii) Management Shareholders whose Aggregate Ownership of Company
Equity Securities is over 50% of the Aggregate Ownership of Company Equity
Securities of all Management Shareholders, and (iii) the CCMP
Representative; provided, however, that any waiver, amendment or
modification that materially and adversely affects one or more Management
Shareholders disproportionately as compared to all other Management
Shareholders shall require the prior written consent of a majority of such
Management Shareholders so adversely affected.


 


SECTION 8.06                    Non-Recourse.  Notwithstanding anything that may be
expressed or implied in this Agreement, the Company and each Management
Shareholder covenant, agree and acknowledge that no recourse under this
Agreement or any documents or instruments delivered in connection with this
Agreement shall be had against any current or future director, officer,
employee, general or limited partner or member of any Sponsor or of any
Affiliate or assignee thereof, whether by the enforcement of any assessment or
by any legal or equitable proceeding, or by virtue of any statute, regulation
or other applicable law, it being expressly agreed and acknowledged that no
personal liability whatsoever shall attach to, be imposed on or otherwise be
incurred by any current or future officer, agent or employee of any Sponsor or
any current or future member of any Sponsor or any current or future director,
officer, employee, partner or member of any Sponsor or of any Affiliate or
assignee thereof, as such for any obligation of any Sponsor under this
Agreement or any documents or instruments delivered 


 


39

















 


in connection with this
Agreement for any claim based on, in respect of or by reason of such
obligations or their creation.


 


SECTION 8.07                    Governing Law; Venue.  All issues concerning the relative rights of
the Company, the Sponsors and the Management Shareholders with respect to each
other, the construction, validity and interpretation of this Agreement, and the
rights and obligations of the parties hereunder, shall be governed by, and construed
in accordance with, the laws of the State of Delaware that would require the
application of any law other than the law of the State of Delaware, without
regard to the conflicts of laws rules of such state.  Any legal action or proceeding with respect
this Agreement shall be brought in the courts of the State of Delaware, and, by
execution and delivery of this Agreement, each party hereby irrevocably accepts
for itself and in respect of its property, generally and unconditionally, the
exclusive jurisdiction of such courts. 
Each party irrevocably waives any objection which it may now or
hereafter have to the laying of venue of the aforesaid actions or proceedings
arising out of or in connection with this Agreement in the courts referred to
in this paragraph and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.


 


SECTION 8.08                    WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING (INCLUDING
COUNTERCLAIMS) RELATING TO OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE TRANSACTIONS OR RELATIONSHIPS HEREBY CONTEMPLATED OR
OTHERWISE IN CONNECTION WITH THE ENFORCEMENT OF ANY RIGHTS OR OBLIGATIONS
HEREUNDER.


 


SECTION 8.09                    Specific Enforcement; Cumulative Remedies.  The parties hereto acknowledge that money
damages may not be an adequate remedy for violations of this Agreement and that
any party, in addition to any other rights and remedies which the parties may
have hereunder or at law or in equity, may, in his or its sole discretion,
apply to a court of competent jurisdiction for specific performance or
injunction or such other relief as such court may deem just and proper in order
to enforce this Agreement or prevent any violation hereof and, to the extent
permitted by applicable law, each party waives any objection to the imposition
of such relief.  All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the exercise
or beginning of the exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such rights, powers or remedies by
such party.


 


SECTION 8.10                    Entire Agreement.  This Agreement, together with all agreements
referred to herein, and any schedules, exhibits and other documents referred to
herein or therein constitute the entire agreement and understanding among the
parties hereto in respect of the subject matter hereof and thereof and
supersede all prior and contemporaneous arrangements, agreements and
understandings, both oral and written, whether in term sheets, presentations or
otherwise, among the parties hereto, or between any of them, with respect to
the subject matter hereof and thereof.


 


SECTION 8.11                    Severability.


 


(a)                                  If any term,
provision, covenant or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.  Upon
such a determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby
be consummated as originally contemplated to the fullest extent possible.


 


40














 


(b)                                 To the extent
the terms of the constitutive documents of the Company are contradictory to, or
inconsistent with, the terms of this Agreement, the terms of this Agreement
shall, to the extent permitted by law, supersede such conflicting or
inconsistent terms.  All terms of the
constitutive documents not contradictory to, or inconsistent with, the terms of
this Agreement shall remain in full force and effect.


 


SECTION 8.12                    Aggregation of Company Equity Securities.  (a) All Company
Equity Securities held by a Management Shareholder who is an employee of any of
the Company or the Subsidiaries, and his or her Permitted Transferees, shall be
aggregated together for purposes of determining the rights and obligations of
such Management Shareholder under this Agreement.


 


(b)                                 All Company
Equity Securities held by the Sponsors and their respective Sponsor Permitted
Transferees shall be aggregated together for purposes of determining the rights
and obligations of the Sponsors under this Agreement.


 


SECTION 8.13                    Reimbursement of Expenses.


 


(a)                                  The Company
agrees to pay or reimburse the Management Shareholders (i) for all
reasonable costs and expenses (including reasonable attorneys fees, charges,
disbursements and expenses) incurred in connection with the preparation and
execution of this Agreement, (ii) for all reasonable costs and expenses
(including reasonable attorneys fees, charges, disbursements and expenses)
incurred in connection with any amendment, supplement, modification or waiver
of or to any of the terms or provisions of this Agreement, and (iii) for
all costs and expenses of such Management Shareholders (including reasonable
attorneys fees, charges, disbursements and expenses) incurred in connection
with the consent to any departure by the Company or any of its Subsidiaries
from the terms of any provision of this Agreement; provided, that, the Company shall only be obligated to pay
or reimburse the reasonable fees, charges, disbursements and expenses of
Reinhart Boerner Van Deuren s.c. acting on behalf of certain of the
Management Shareholders with respect to any of the foregoing clauses (i) through
(iv).


 


SECTION 8.14                    Counterparts; Effectiveness.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.


 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]


 


41

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.


 


	
   

  	
  THE COMPANY:

  
	
   

  	
   

  
	
   

  	
  GPS
  CCMP ACQUISITION CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mark Mcfadden

  
	
   

  	
  Name:
  Mark Mcfadden

  
	
   

  	
  Title:
  Assistant Secretary

  
	
   

  	
   

  
	
   

  	
  THE SPONSORS:

  
	
   

  	
   

  
	
   

  	
  CCMP
  CAPITAL INVESTORS II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Capital Associates, L.P.,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Capital Associates GP, LLC,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephen McKenna

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CCMP
  CAPITAL INVESTORS (CAYMAN) II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Capital Associates, L.P.,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Capital Associates GP, LLC,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephen McKenna

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASIA
  OPPORTUNITY FUND II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP
  Asia Equity Partners II, L.P.,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Liu
  Asia Equity Company II,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew Liu

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE
PAGE TO SHAREHOLDERS’ AGREEMENT]


 

















 


	
   

  	
  AOF II EMPLOYEE CO-INVEST FUND, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  ,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  ,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew Liu

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CCMP
  GENERAC CO-INVEST L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  CCMP Generac Co-Invest GP, LLC,

  
	
   

  	
  its
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephen McKenna

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


[SIGNATURE
PAGE TO SHAREHOLDERS’ AGREEMENT]


 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  William W. Treffert

  
	
   

  	
  WILLIAM
  W. TREFFERT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  WILLIAM AND SELMA TREFERRT LIVING TRUST DATED FEBRUARY 21, 1998

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William W. Treffert

  
	
   

  	
   

  	
  Name:
  William Treferrt

  
	
   

  	
   

  	
  Its:
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE
  WILLIAM W. SELMA GRANTOR RETAINED ANNUITY TRUST

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul A.Zudyk, Trustee

  
	
   

  	
   

  	
  Name:
  Paul A. Zudyk

  
	
   

  	
   

  	
  Its:
  Trustee

  



 


3

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Joseph T. Buba

  
	
   

  	
  Joseph
  T. Buba

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Roger W. Schaus, Jr.

  
	
   

  	
  Roger
  W. Schaus, Jr.

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Steven A. Hespe

  
	
   

  	
  Steven
  A. Hespe

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Roger F. Pascavis

  
	
   

  	
  Roger
  F. Pascavis

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Roddy W. Rogahn

  
	
   

  	
  Roddy
  W. Rogahn

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Frank X. Wendel

  
	
   

  	
  Frank
  X. Wendel

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Paul G. Bowers

  
	
   

  	
  Paul
  G. Bowers

  



 














 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Gordon M. Michaelson

  
	
   

  	
  Gordon
  M. Michaelson

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Kevin T. Anderson

  
	
   

  	
  Kevin
  T. Anderson

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Patrick J. Diem

  
	
   

  	
  Patrick
  J. Diem

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Kenneth E. Ulrich

  
	
   

  	
  Kenneth
  E. Ulrich

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Stephanie A. Borowski

  
	
   

  	
  Stephanie
  A. Borowski

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Allen D. Gillette

  
	
   

  	
  Allen
  D. Gillette

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Steve C. Goran

  
	
   

  	
  Steve
  C. Goran

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Frank A. Prindl

  
	
   

  	
  Frank
  A. Prindl

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Paul M. Bazzetta

  
	
   

  	
  Paul
  M. Bazzetta

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Guoming Wu

  
	
   

  	
  Guoming
  Wu

  



 














 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Garu J. Lato

  
	
   

  	
  Gary
  J. Lato

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Joseph J. Romanowski

  
	
   

  	
  Joseph
  J. Romanowski

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Daniel E. Waschow

  
	
   

  	
  Daniel
  E. Waschow

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Timothy J. Heardan

  
	
   

  	
  Timothy
  J. Heardan

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Peter D. Winnie

  
	
   

  	
  Peter
  D. Winnie

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Warren E. Buchter

  
	
   

  	
  Warren
  E. Buchter

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  William J. Mongan

  
	
   

  	
  William
  J. Mongan

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Rocky L. Hofstetter

  
	
   

  	
  Rocky
  L. Hofstetter

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/ Julie A. Santapoalo

  
	
   

  	
  Julie A. Santapoalo

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  York A. Ragen

  
	
   

  	
  York
  A. Ragen

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Dawn A. Tabat

  
	
   

  	
  Dawn
  A. Tabat

  



 

















 


	
   

  	
  THE MANAGEMENT SHAREHOLDERS:

  
	
   

  	
   

  
	
   

  	
  /s/
  Aaron P. Jagdfeld

  
	
   

  	
  Aaron
  P. Jagdfeld

  



 

















 


EXHIBIT
A


JOINDER AGREEMENT


 


This Joinder Agreement (this “Joinder Agreement”)
is made as of the date written below by the undersigned (the “Joining Party”) in
accordance with the Shareholders’ Agreement dated as of November 10, 2006
(the “Shareholders’
Agreement”) among GPS CCMP ACQUISITION CORP., CCMP CAPITAL
INVESTORS II, L.P., CCMP CAPITAL INVESTORS (CAYMAN) II, L.P. ASIA OPPORTUNITY
FUND II, L.P., AOF II EMPLOYEE CO-INVEST FUND, L.P., CCMP GENERAC CO-INVEST,
L.P. and certain other persons named therein. 
Capitalized terms used, but not defined, herein shall have the meaning
ascribed to such terms in the Shareholders’ Agreement.


 


The Joining Party hereby acknowledges, agrees and
confirms that, by its execution of this Joinder Agreement, the Joining Party
shall be deemed to be a party to and a “Management Shareholder” under the
Shareholders’ Agreement as of the date hereof and shall have all of the rights
and obligations of the Management Shareholder from whom it has acquired Company
Equity Securities (to the extent permitted by the Shareholders’ Agreement) as
if it had executed the Shareholders’ Agreement. 
The Joining Party hereby ratifies, as of the date hereof, and agrees to
be bound by, all of the terms, provisions and conditions contained in the
Shareholders’ Agreement.  The Joining
Party acknowledges that, among the obligations of such Joining Party pursuant
to the Shareholders’ Agreement is the obligation to sell any or all of the
Company Equity Securities acquired by such Joining Party to the Company or to
one or more Third Parties in certain circumstances pursuant to Articles IV
and V of the Shareholders’ Agreement.


 


To the extent the Joining Party is a Permitted
Transferee of an Investor who is an employee of the Company, such Joining Party
acknowledges that all Company Equity Securities held by such Joining Party
shall be aggregated with the Company Equity Securities of such Management
Shareholder and his or her other Permitted Transferees for purposes of
determining the rights and obligations of such Management Shareholder under the
Shareholders’ Agreement.


 


IN WITNESS WHEREOF, the undersigned has executed
this Joinder Agreement as of the date written below.


 


Date:                                     ,
             


 


	
   

  	
  [NAME
  OF JOINING PARTY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  Address
  for Notices:

  



 


	
  AGREED ON THIS [            ]
  day of [                    ],
  200[    ]:

  	
   

  
	
   

  	
   

  
	
  GPS
  CCMP ACQUISITION CORP.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title: