exv10w1



 






Exhibit 10.1




STOCK PURCHASE AND SALE AGREEMENT




     This STOCK PURCHASE AND SALE AGREEMENT (the “Agreement”) is made and entered into as
of this 8th day of November, 2005, by and between the W. K. Kellogg Foundation Trust, a charitable
trust organized under the laws of the State of Michigan (the “Selling Stockholder”), and
Kellogg Company, a Delaware corporation (the “Company”)).



     WHEREAS, pursuant to this Agreement (1) the Company has agreed to repurchase from the Selling
Stockholder and the Selling Stockholder has agreed to sell to the
Company 9,371,567 Shares (as
defined below) owned by the Selling Stockholder, for an aggregate
purchase price of $400 million in
cash as set forth herein, (2) the Selling Stockholder has agreed to grant the Company certain
rights with respect to the purchase of certain additional Shares of the Selling Stockholder in the
event the Selling Stockholder desires to dispose of such Shares under certain circumstances and (3)
the Company has agreed to grant certain registration rights to the Selling Stockholder.



     WHEREAS,
as of October 28, 2005, the Company had issued and there were
outstanding 414,235,942 shares of common stock, par value $.0l per share (the “Shares”).



     WHEREAS, the Selling Stockholder currently owns 120,904,040 Shares, constituting approximately
29% of the outstanding Shares.



     NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties,
covenants and agreements set forth in this Agreement, the parties agree as follows:



ARTICLE I

Purchase and Sale




     1.1 Purchase of Shares. On the terms and subject to the conditions of this Agreement,
at the Closing, the Selling Stockholder shall sell, assign, transfer and deliver to the Company,
and the Company shall acquire from the Selling Stockholder,
9,371,567 Shares owned by the Selling
Stockholder (the “Purchased Shares”), in exchange for cash in an aggregate amount equal to
$400 million (the “Purchase Price”),
representing a per Share purchase price of $42.68.



ARTICLE II

The Closing




     2.1
Closing; Closing Deliveries. (a) Subject to
clause (d) below, the closing shall take
place on November 10,
2005 at a time mutually
agreed by the parties at the offices of the Company (the “Closing”).



     (b) At the Closing, the Selling Stockholder shall cause the Purchased Shares to be
transferred to the Company (and such transfer to be reflected on the share registry of the



 









 







Company) free and clear of all liens, claims, security interests, pledges, charges and other
encumbrances.



     (c) At the Closing, the Company shall deliver by wire transfer to the account designated by
the Selling Stockholder and set forth on Schedule 2.1 immediately available funds in U.S. dollars
in an amount equal to the Purchase Price.



     (d) The
obligations of the parties hereto to consummate the transactions
contemplated hereby shall be subject to the satisfaction at the
Closing of the condition that there shall be no statute, regulation,
injunction, restraining or other order, rule or decree of any nature
of any local, state, federal or foreign court, arbitrator, arbitral
tribunal, or other governmental, administrative or regulatory entity,
agency, instrumentality or authority (collectively, a
“Governmental Authority”) that is in effect that prohibits,
restricts, alters or prevents consummation of the transactions
contemplated hereby.




ARTICLE III

Representations and Warranties of the Company




     In order to induce the Selling Stockholder to enter into this Agreement, the Company hereby
represents and warrants to the Selling Stockholder as follows:



     3.1 Corporate Power and Authority. The Company is duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Company has all requisite
corporate power and authority to enter into and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement by the Company have been duly authorized by all
necessary corporate action on the part of the Company. This Agreement has been duly executed and
delivered by the Company and (assuming due authorization, execution and delivery by the Selling
Stockholder) constitutes the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms subject to (a) applicable bankruptcy, insolvency,
fraudulent conveyance and other similar laws and (b) general principles of equity, including
equitable defenses and limits as to the availability of equitable remedies, whether such principles
are considered in a proceeding at law or in equity.



     3.2 Conflicts; Consents and Approvals. To the knowledge of the General Counsel and
Chief Financial Officer of the Company as of the date hereof, the execution and delivery of this
Agreement and the consummation of the transactions contemplated by this Agreement do not and will
not (a) violate, conflict with, or result in a breach of any provision of, or constitute a default
under, the Company’s Amended Restated Certificate of Incorporation or Bylaws, as amended; (b)
violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Company;
or (c) require any action or consent or approval of, or review by, or registration or material
filing by the Company with, any Governmental Authority, except as set forth herein and the filing of a Current Report on Form 8-K.



     3.3 Litigation. As of the date immediately preceding the date hereof, to the
knowledge of the General Counsel and Chief Financial Officer of the Company, there are no actions,
suits or proceedings pending against the Company (or any of its properties, rights or franchises),
at law or in equity, or before any Governmental Authority that would, individually or in the aggregate, reasonably be expected to have an adverse
effect on its ability to consummate the transactions contemplated hereby.







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ARTICLE IV

Representations and Warranties of the Selling Stockholder




     In order to induce the Company to enter into this Agreement, the Selling Stockholder
represents and warrants to the Company as follows:



     4.1 Title to Shares. The Selling Stockholder owns beneficially and of record the
Purchased Shares and has good title, free and clear of all liens, claims, security interests,
pledges, charges and other encumbrances, to the Purchased Shares.



     4.2 Power and Authority. The Selling Stockholder is duly organized and validly
existing under the laws of the State of Michigan. It has all requisite power and authority to
enter into and deliver this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated by this Agreement. The execution, delivery and performance of this
Agreement by the Selling Stockholder has been duly authorized by all necessary action on its part.
This Agreement has been duly executed and delivered by the Selling Stockholder and (assuming due
authorization, execution and delivery by the Company) constitutes the legal, valid and binding
obligation of the Selling Stockholder, enforceable against it in accordance with its terms subject
to (a) applicable bankruptcy, insolvency, fraudulent conveyance and other similar laws and (b)
general principles of equity, including equitable defenses and limits as to the availability of
equitable remedies, whether such principles are considered in a proceeding at law or in equity.



     4.3 Conflicts; Consents and Approvals. To the knowledge of the Trustees of the
Selling Stockholder as of the date hereof, the execution and delivery of this Agreement and the
consummation of the transactions contemplated by this Agreement do not and will not (a) violate,
conflict with, or result in a breach of any provision of, or constitute a default under, the
Selling Stockholder’s governing or organizational documents; (b) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Selling Stockholder; or (c)
require any action or consent or approval of, or review by, or registration or material filing,
other than a filing pursuant to Section 16(a) under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), by it with, any Governmental
Authority except as set forth herein.



     4.4 No Agreements or Understandings. The Selling Stockholder is not a party to any
contract, agreement, arrangement, understanding or relationship (legal or otherwise) with any other
person, individual, firm, corporation, partnership, trust, joint venture, governmental authority or
other entity with respect to any securities of the Company, including without limitation transfer
or voting of any securities of the Company, finders fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or losses or the giving or
withholding of proxies.



     4.5 Litigation. As of the date immediately preceding the date hereof, to the
knowledge of the Trustees of the Selling Stockholder, there are no actions, suits or proceedings
pending against the Selling Stockholder (or any of its properties, rights or franchises), at law or
in equity, or before any Governmental
Authority



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that would, individually or in the aggregate, reasonably be expected to have
an adverse effect on its ability to consummate the transactions contemplated hereby.



ARTICLE V

Additional Covenants




     5.1 Press Releases. The initial press release by each of the Selling Stockholder and
the Company announcing the transactions contemplated by this Agreement shall be in the form
mutually agreed by the parties.



     5.2 Company’s Right of Further Repurchase. (a) Prior to providing a Demand Notice
(as defined in Exhibit A) to the Company requesting that the Company register the offer and
sale under the Securities Act of 1933, as amended (the “Securities Act”), of Registrable
Shares (as defined in Exhibit A) owned by the Selling Stockholder as provided for in
Exhibit A hereto, the Selling Stockholder shall provide the Company with a preliminary
notice (the “Preliminary Notice”) of its contemplation of submitting a Demand Notice,
including the number of Registrable Shares the Selling Stockholder is contemplating being covered
by the Demand Notice. Following the Company’s receipt of the Preliminary Notice, the Company and
the Selling Stockholder shall discuss the potential disposal of Shares being contemplated by the
Selling Stockholder for a period of three (3) business days or such other period upon which the
Company and the Selling Stockholder may agree (the “Discussion Period”). Following the end
of the Discussion Period and if the Selling Stockholder desires to do so, the Selling Stockholder
may provide the Company with a Demand Notice with respect to the number of Registrable Shares
contemplated by the Selling Stockholder’s Preliminary Notice; provided, that if the Selling
Stockholder does not provide such a Demand Notice within ten (10) business days following the end
of the Discussion Period, then the Selling Stockholder must provide a Preliminary Notice and follow
the procedures set forth above again prior to submitting a Demand Notice. The Preliminary Notice
and the Demand Notice may only be delivered to the Company on a business day. The Company shall
have the right (the “Repurchase Right”), exercisable within three (3) business days
following the date of the Company’s receipt of the Demand Notice, to give notice to the Selling
Stockholder that it elects to repurchase all or a portion of the Shares which are the subject of
the Demand Notice. The price per Share which the Company is to pay for such repurchase of Shares
shall be 96.8% of the New York Stock Exchange volume weighted average price (calculated by
reference to the five trading-day period as a whole and not as an average of five one-day numbers)
of the Shares as reported by Bloomberg for the five (5) trading days immediately preceding the
business day of the Company’s receipt of the Demand Notice (the “Pricing Period”) or such
other price as the Company and the Selling Stockholder may agree upon. The Company and the Selling
Stockholder will enter into customary documentation with respect to such a repurchase which
documentation shall contain provisions (other than those contained in this Section 5.2 and
Exhibit A) that are substantially similar to those contained in this Agreement. The
consummation of such a repurchase (including transfer of repurchased Shares to the Company and
payment for such Shares to the Selling Stockholder) shall occur at a time and place mutually agreed
upon by the Company and the Selling Stockholder, but in any event within two (2) business days
following the date on which the Company exercises its Repurchase Right. The Company’s repurchase
of Shares pursuant to this Section 5.2 and Exhibit A (and the delivery of the Preliminary
Notice and the Demand



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Notice shall be made at a time such that any portion of the Discussion Period, the related
Pricing Period and any period during which the Company is to determine whether it will repurchase
Shares of the Selling Stockholder) shall not occur during the Company’s customary trading blackout
periods (as established on the date of this Agreement) or any Blackout Period which the Company
shall be entitled to impose in accordance with the provisions of
sub-clauses (i) - (iv) of clause
(a)(3) of Exhibit A; and any purported Preliminary Notice or Demand Notice delivered at such
time shall be invalid and have no effect for purposes of this
Agreement. Subject to the provisions of this Section 5.2 and in the absence of the
Company’s repurchase of the Shares contemplated to be sold by the Selling Stockholder either
pursuant to the Company’s exercise of its Repurchase Right or otherwise, effective as of the
Closing, the Company and the Selling Stockholder shall each have the rights and obligations set
forth in Exhibit A. For purposes of this Agreement, “business day” means any day
other than a Saturday, Sunday, Federal holiday or any other day on which banking institutions in
New York or Michigan are authorized or obligated by applicable law or regulation to be closed. Any
notice not received on a business day shall be deemed to be received on the next following business
day.



     5.3 Transfer Taxes. The Selling Stockholder shall be responsible for the payment of
any stock transfer or similar taxes in connection with the transactions contemplated by this
Agreement.



     5.4 Further Assurances. (a) Each of the parties hereto shall use its reasonable best
efforts to take, or cause to be taken, all appropriate action, to do or cause to be done all things
necessary, proper or advisable under applicable law, and to execute and deliver such documents and
other papers, as may be required to carry out the provisions of this Agreement and to consummate
and make effective the transactions contemplated by this Agreement.



     (b) Each of the Company and the Selling Stockholder agrees to cooperate and use its reasonable
best efforts to contest and resist any action, including, without limitation, administrative or
judicial action, and to have vacated, lifted, reversed or overturned any decree, judgment,
injunction or other order (whether temporary, preliminary or permanent) that is in effect that
restricts, prevents or prohibits the consummation of any of the transactions contemplated by this
Agreement, including, without limitation, by pursuing all reasonably available avenues of
administrative and judicial appeal.



ARTICLE VI

Miscellaneous




     6.1 Counterparts. This Agreement may be executed in any number of counterparts, which
together shall constitute one and the same Agreement. The parties may execute more than one copy
of the Agreement, each of which shall constitute an original.



     6.2 Entire Agreement. This Agreement (including the exhibit and schedule hereto)
constitutes the entire agreement between the parties and supersedes all prior agreements,
understandings, arrangements or representations by or between the parties, written and oral, with
respect to the subject matter hereof. The parties hereby agree that they shall have no further
rights, obligations, liabilities or claims under or relating to any such other agreement.



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     6.3 Third Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended or shall be construed to create any third party beneficiaries.



     6.4 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the
State of Delaware, without giving effect to the conflict of laws principles thereof. Each party
irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of
the State of Delaware and of the United States of America, in each case located in the State of
Delaware, for any action or proceeding arising out of or relating to this Agreement and the
transactions contemplated by this Agreement (and agrees not to commence any action except in any
such court). Each party irrevocably and unconditionally waives any objection to the laying of
venue of any action or proceeding in the courts of the State of Delaware or of the United States of
America, in each case located in the State of Delaware, and further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any action or proceeding brought in
any such court has been brought in an inconvenient forum. Each party irrevocably and
unconditionally waives any right it may have to a trial by jury in connection with any action or
proceeding arising out of or relating to this Agreement and the transactions contemplated by this
Agreement.



     6.5 Specific Performance. The transactions contemplated by this Agreement are unique.
Accordingly, each of the parties acknowledges and agrees that, in addition to all other remedies
to which it may be entitled, each of the parties hereto is entitled to a decree of specific
performance and injunctive and other equitable relief.



     6.6 Amendment. This Agreement may not be altered, amended or supplemented except by
an agreement in writing signed by each of the parties hereto.



     6.7 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by facsimile, by courier service or by
registered or certified mail to the respective parties at the following addresses (or at such other
address for a party as shall be specified in a notice given in accordance with this Section 6.7):



     If to the Selling Stockholder, to:


W.
K. Kellogg Foundation Trust

c/o The Bank of New York

1633 Broadway, 13th Floor

New York, New York 10019

Attention: Kevin J. Bannon

Facsimile No.: (212) 237-0936



With a copy to:



Sidley Austin Brown & Wood LLP

One South Dearborn Street

Chicago, Illinois 60603

Attention: Paul A. Svoboda, Esq.

Facsimile No.: (312) 853-7036




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if to the Company, to:



Kellogg
Company

One Kellogg Square

Battle Creek, Michigan 49017

Attention: Chief Financial Officer

Facsimile No.: (269) 961-6598



With copies to:



Kellogg
Company

One Kellogg Square

Battle Creek, Michigan 49017

Attention: General Counsel

Facsimile No.: (269) 565-1266



Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

Attention: Daniel A. Neff, Esq.

Facsimile No.: (212) 403-2218




     6.8 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties (whether by operation of law or
otherwise) without the prior written consent of the other party. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the
parties and their respective successors and assigns.



     6.9 Fees and Expenses. Except as otherwise provided in this Agreement or Exhibit
A, all costs and expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement shall be the responsibility of and shall be paid by the party
incurring such fees or expenses, whether or not the transactions contemplated by this Agreement are
consummated.



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     IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be executed by its
officer thereunto duly authorized as of the date first written above.



	 	 	 	 	 
	 	 	W. K. KELLOGG FOUNDATION TRUST
	 
	 	 	 	 
	 	 	By: The Bank of
New York, corporate trustee
	 
	 	 	 	 
	 
	 	By:	 	/s/ Kevin J. Bannon
	 

	 	 	 	 
	 

	 	 	 	Name: Kevin J. Bannon
	 

	 	 	 	Title: Executive Vice President
	 
	 	 	 	 
	 	 	KELLOGG COMPANY
	 
	 	 	 	 
	 

	 	By:	 	/s/ Jeffrey M. Boromisa
	 

	 	 	 	 
	 

	 	 	 	Name: Jeffrey M. Boromisa
	 

	 	 	 	Title:  Senior Vice President
and Chief Financial Officer






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EXHIBIT A




REGISTRATION RIGHTS




     (a) From and after February 1, 2006, and until December 31, 2006 (subject to clause (a)(3)
below), the Selling Stockholder shall have the right to make up to two written requests (the
“Demand Notices”) of the Company for registration under the Securities Act of the offer and
sale of all or a portion of the Registrable Shares owned by the Selling Stockholder; provided that
(u) each Demand Notice must be with respect to Registrable Shares having a market value (based on
the New York Stock Exchange volume weighted average price (calculated by reference to the five
trading-day period as a whole and not as an average of five one-day numbers) of the Shares as
reported by Bloomberg for the five (5) trading days immediately preceding the business day of the
Company’s receipt of the applicable Demand Notice) of at least $100,000,000 (provided, that if such
market value is less than $100,000,000 solely as a result of the Company’s exercise of its
Repurchase Right with respect to some but not all of the Registrable Shares subject to the
applicable Demand Notice, then the $100,000,000 threshold shall not apply so long as the demanded
registration applies to all Registrable Shares which were the subject of the applicable Demand
Notice but were not subject to the Company’s exercise of its Repurchase Right) and all Registrable
Shares subjected to Demand Notices (including a deemed Demand Notice as provided for in clause (v)
below) pursuant to this Exhibit A shall have an aggregate market value (as set forth above)
of no more than $400,000,000, (v) a Demand Notice shall be deemed to have been exercised and used
with respect to (and therefore the $400,000,000 maximum shall be reduced by) each purchase by the
Company from the Selling Stockholder of Registrable Shares, including, without limitation, such a
purchase arising out of discussions occurring during a Discussion Period, (w) any sale pursuant to
the registration rights set forth in this Exhibit A shall be in the form of an underwritten
public offering in which the underwriters will use reasonable best efforts to effect a broad
distribution of the Registrable Shares to be sold led by two lead underwriters/bookrunners, both
chosen by the Selling Stockholder, provided that one such underwriter/bookrunner shall be selected
from a list of candidates identified by the Company, (x) the Company shall not be required to file
and the Company may withdraw (or otherwise take action to prohibit the sale and offering under) a
registration statement pursuant to a Demand Notice during the Company’s customary blackout periods
(as established on the date of this Agreement), and the Selling Stockholder agrees to cooperate
with respect thereto and not to engage in a sale or offering at such time, (y) the Selling
Stockholder shall not have the right to exercise its second Demand Notice prior to 60 days
following completion of an offering pursuant to the first Demand Notice or a repurchase by the
Company of Registrable Shares owned by the Selling Stockholder, either pursuant to the Company’s
exercise of its Repurchase Right or otherwise, and (z) the procedures set forth in Section 5.2 of
the Agreement shall have first been complied with and the Company shall not have repurchased
Registrable Shares owned by the Selling Stockholder, either pursuant to the exercise of its
Repurchase Right or otherwise with respect to such Registrable Shares. “Registrable
Shares” means the Shares beneficially owned as of the date hereof by the Selling Stockholder
which are not Purchased Shares and any Shares that may be issued in respect of such Shares;
provided that such Shares shall cease to be Registrable Shares as soon as such Shares have been
sold, transferred or otherwise disposed of or cease to be outstanding.



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     (1) The Selling Stockholder hereby undertakes to provide all such information and materials
and take all such action as may be requested in order to permit the Company to comply with all
applicable requirements of the Securities and Exchange Commission (the “Commission”) and to
obtain, if not immediately effective, any desired acceleration of the effective date of a
registration statement with respect to the Registrable Shares covered by the applicable Demand
Notice.



     (2) Any registration statement filed at the Selling Stockholder’s request hereunder will not
count as a Demand Notice unless effectiveness thereof is maintained until the earlier of the
completion of the offering and the date that is 45 days following the effective date of such
registration statement.



     (3) Notwithstanding the foregoing, the Company shall be entitled to postpone for a reasonable
period of time (not to exceed 45 days in the case of any one demanded registration, provided that
in any such case the Company may extend such postponement for an additional number of days such
that the total Blackout Period does not exceed 90 days if it determines in good faith that a Delay
Standard exists and informs the Selling Stockholder of such determination before the termination of
the initial period) the filing of any registration statement otherwise required to be prepared and
filed by the Company and/or the sale and offering of Registrable Shares and to withdraw (or
otherwise take action to prohibit the sale and offering under) the related registration statement
(and the Selling Stockholder agrees to cooperate with respect thereto and not to engage in a sale
or offering at such time) following a Demand Notice (each such period, a “Blackout Period”)
if the Company determines that such postponement, withdrawal or other action is in the best
interests of the Company’s stockholders as such filing or the sale or offering of any Registrable
Shares would (i) substantially impede, delay or otherwise interfere with any pending or
contemplated acquisition, disposition, corporate reorganization or other material transaction
involving the Company or its subsidiaries, (ii) have an adverse effect on any pending or
contemplated financing, offering or sale of any class of securities of the Company in a substantial
way, (iii) require disclosure of material non-public information that is not then otherwise
required by law to be disclosed and that, if disclosed at such time, would be harmful to the
interests of the Company or its stockholders or (iv) otherwise raise issues or considerations of a
nature similar to those raised by the occurrences described in clauses (i), (ii) and/or (iii) of
this sentence (any of clauses (i), (ii), (iii) and/or (iv) of this sentence, the “Delay
Standard”). The Company shall promptly inform the Selling
Stockholder when a Blackout Period has ended. Notwithstanding the foregoing, the Company shall only be entitled to one Blackout
Period (including an extension thereof as contemplated above) with respect to each Demand Notice.
There shall be a commensurate extension of the December 31, 2006 deadline set forth in paragraph
(a) above by a number of days equal to the number of days the Company has postponed the filing of
any registration statement pursuant to this clause (a)(3).



     (b) If the Company is required by the provisions of paragraph (a) to use its reasonable best
efforts to effect the registration of Registrable Shares, the Company will:



     (1) as expeditiously as possible prepare and file with the Commission a registration
statement, or an amendment to an existing registration statement, if
any, as the case may be, on such form as the Company in its reasonable discretion shall






A-2









 




determine, with respect to the offer and sale of such Registrable Shares and use its
reasonable best efforts to cause such registration statement (or such
amendment) promptly to become and remain
effective for a period of time required for the disposition of such Registrable Shares by the
Selling Stockholder but not to exceed 45 days; provided, however, that before filing such
registration statement or any amendments thereto, to the extent practicable the Company shall
furnish to the representatives of the Selling Stockholder copies of all documents proposed to be
filed and counsel to the Selling Stockholder shall have a reasonable opportunity to comment thereon
and, provided, further, that the registration statement filed by the Company shall be an “automatic
shelf registration statement” (as such term is defined in the rules and forms of the Securities and
Exchange Commission) or a post-effective amendment to an automatic shelf registration statement if
the Company is at such time eligible to make such a filing;




     (2) prepare and file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the Securities Act with
respect to the sale of the Registrable Shares covered by such registration statement until the
earlier of the completion of the offering or the date that is 45 days following the effective date
of such registration statement;



     (3) furnish to the Selling Stockholder the applicable registration statement and each
amendment and supplement thereto (including in each case all exhibits), if any, and a copy of a
summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents, as the Selling Stockholder may
reasonably request;



     (4) use its reasonable best efforts to register or qualify the Registrable Shares covered by
such registration statement under such other securities or blue sky laws of such jurisdictions
within the United States as are necessary to keep such registration or qualification in effect for
so long as such registration statement remains in effect, and to take any other action which may be
necessary to enable the Selling Stockholder to consummate the disposition in such jurisdictions of
the Registrable Shares (provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business, subject itself to taxation in or to
file a general consent to service of process in any jurisdiction wherein it would not but for the
requirements of this paragraph (b)(4) be obligated to do so), and do such other reasonable acts and
things as may be required of it to enable the Selling Stockholder to consummate the disposition in
such jurisdiction of the Registrable Shares covered by such registration statement;



     (5) use reasonable best efforts to enter into customary agreements, including an underwriting
agreement customary in form and scope for underwritten secondary offerings of the nature
contemplated by the applicable registration statement, including with contemplated opinions of
counsel to the Company, “comfort letters” or similar documents of the independent certified public
accountants of the Company, indemnities and officer’s certificates as to the accuracy of the
Company’s representations and warranties contained in the underwriting agreement;



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     (6) otherwise use its reasonable best efforts to comply with all applicable rules and
regulations of the Commission, and make earnings statements satisfying the provisions of Section
11(a) of the Securities Act generally available to the Selling Stockholder no later than 45 days
after the end of any twelve-month period (or 90 days, if such period is a fiscal year) commencing
at the end of any fiscal quarter in which Registrable Shares are sold to underwriters in an
underwritten public offering;



     (7) use its reasonable best efforts to cause all such Registrable Shares to be listed on each
securities exchange or quotation system on which similar securities issued by the Company are
listed or traded;



     (8) inform the Selling Stockholder:




	 	(A)	 	when such registration statement or any amendment thereto has
been filed with the Commission and when, if later, such registration statement
or any post-effective amendment thereto has become effective;
	 
	 	(B)	 	of any request by the Commission for amendments or supplements
to such registration statement or the prospectus included therein or for
additional information;
	 
	 	(C)	 	of the issuance by the Commission of any stop order suspending
the effectiveness of such registration statement or the initiation of any
proceeding for that purpose;
	 
	 	(D)	 	of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
	 
	 	(E)	 	of the happening of any event that requires the Company to make
changes in such registration statement or the prospectus in order to make the
statements therein not misleading (accompanied by an instruction to suspend the
use of the prospectus until the requisite changes have been made);





     (9) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any
order suspending the effectiveness of such registration statement at the earliest possible time;



     (10) make reasonably available for inspection by the representatives of the underwriters
participating in any disposition pursuant to such registration statement relevant financial
records, pertinent corporate documents and properties of the Company in connection with customary
due diligence relating to such registration;



     (11) to the extent reasonably required and at such times that do not unreasonably interfere
with the other obligations of senior executives of the Company, make such senior executives
available to the Selling Stockholder for meetings with prospective



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purchasers of the Registrable Shares and prepare and present to potential investors customary
“road show” material, in each case in accordance with the reasonable recommendations of the
underwriters and in all respects in a manner consistent with other secondary offerings of
securities in an offering of a similar size to such offering of the Registrable Shares; and



     (12) use reasonable best efforts to procure the cooperation of the Company’s transfer agent in
settling any offering or sale of Registrable Shares, including with respect to the transfer of
physical stock certificates into book-entry form in accordance with any procedures reasonably
requested by the Selling Stockholder or the underwriters.



     (c) In connection with a requested registration pursuant to paragraph (a) of this Exhibit
A, the Selling Stockholder shall pay all underwriting discounts and commissions relating to the
Registrable Shares of the Selling Stockholder being so registered, all fees and expenses of legal
counsel, accountants and other advisors to the Selling Stockholder and all reasonable fees and
expenses of legal counsel, accountants and other advisors to the Company incurred in connection
with such a registration (provided that the Selling Stockholder shall not be responsible, with
respect to one or more requested registrations, for more than an aggregate of $75,000 in fees of
outside legal counsel to the Company), all filing fees, printing fees, fees and expenses of
complying with “blue sky” or state securities laws and reasonable fees and expenses relating to
“road show” investor presentations (including the costs of any aircraft used in connection
therewith).



     (d) In the case of each offering registered pursuant to this Exhibit A, the Company
agrees to indemnify and hold the Selling Stockholder, each underwriter of Registrable Shares under
such registration and each person who controls any of the foregoing within the meaning of Section
15 of the Securities Act, and the trustees, directors and officers of the Selling Stockholder,
harmless against any and all losses, claims, damages, liabilities or actions, joint or several, to
which they or any of them may become subject under the Securities Act or any other statute or
common law or otherwise, and to reimburse them for any legal or other expenses reasonably incurred
by them in connection with defending any actions, insofar as any such losses, claims, damages,
liabilities or actions shall arise out of or shall be based upon (1) any untrue statement or
alleged untrue statement of a material fact contained in the registration statement relating to the
sale of such Registrable Shares, or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (2) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus (as amended or
supplemented if the Company shall have filed with the Commission any amendment thereof or
supplement thereto), if used prior to the effective date of such registration statement, or
contained in the prospectus (as amended or supplemented if the Company shall have filed with the
Commission any amendment thereof or supplement thereto), or the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, that the
indemnification agreement contained in this paragraph (d) shall not apply to such losses, claims,
damages, liabilities or actions which shall arise from the sale of Registrable Shares by the
Selling Stockholder if such losses, claims, damages, liabilities or actions shall arise out of or
shall be based upon any such untrue statement or alleged untrue statement, or any such omission or
alleged omission, (i) made in reliance upon and in conformity



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with information furnished in writing to the Company by the Selling Stockholder or any such
underwriter for use in connection with the preparation of the registration statement or any
preliminary prospectus or prospectus contained in the registration statement or any such amendment
thereof or supplement thereto or (ii) in the case of any underwriters (and each person who controls
any underwriters within the meaning of Section 15 of the Securities Act) and in the case of the
Selling Stockholder, made in any preliminary prospectus, and the prospectus contained in the
registration statement in the form filed by the Company with the Commission pursuant to Rule 424(b)
under the Securities Act shall have corrected such statement or omission and a copy of such
prospectus shall not have been sent or given to such person at or prior to the confirmation of such
sale to him.



     (e) In the case of each offering registered pursuant to this Exhibit A, the Selling
Stockholder and each underwriter participating therein agrees, in the same manner and to the same
extent as set forth in paragraph (d) of this Exhibit A, severally to indemnify and hold harmless
(1) the Company and each person, if any, who controls the Company (other than the Selling
Stockholder) within the meaning of Section 15 of the Securities Act, and the directors and officers
of the Company, (2) in the case of each such underwriter, the Selling Stockholder, each person, if
any, who controls the Selling Stockholder within the meaning of Section 15 of the Securities Act
and the trustees, directors and officers of the Selling Stockholder and (3) in the case of the
Selling Stockholder, the underwriters, each person, if any, who controls an underwriter within the
meaning of Section 15 of the Securities Act and the directors and officers of the underwriters,
with respect to any statement in or omission from such registration statement or any preliminary
prospectus (as amended or as supplemented, if amended or supplemented as aforesaid) or prospectus
contained in such registration statement (as amended or as supplemented, if amended or supplemented
as aforesaid), if such statement or omission shall have been made in reliance upon and in
conformity with information furnished in writing to the Company by the Selling Stockholder or such
underwriter (as the case may be) for use in connection with the preparation of such registration
statement or any preliminary prospectus or prospectus contained in such registration statement or
any such amendment thereof or supplement thereto.



     (f) Each party indemnified under paragraph (d) or (e) of this Exhibit A shall,
promptly after receipt of notice of the commencement of any action against such indemnified party
in respect of which indemnity may be sought hereunder, notify the indemnifying party in writing of
the commencement thereof. The failure of any indemnified party to so notify an indemnifying party
of any such action shall not relieve the indemnifying party from any liability in respect of such
action which it may have to such indemnified party on account of the indemnity agreement contained
in paragraph (d) or (e) of this Exhibit A, unless and only to the extent that the
indemnifying party was prejudiced by such failure, and in no event shall relieve the indemnifying
party from any other liability which it may have to such indemnified party. In case any such
action shall be brought against any indemnified party and it shall notify an indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it may desire, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under paragraph (d) or (e) of this Exhibit A for any legal or other
expenses subsequently incurred by such indemnified party in connection with the



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defense thereof; provided, however, that if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified
party for the same counsel to represent both the indemnified party and the indemnifying party, then
the indemnified party shall be entitled to retain one of its own counsel, the reasonable fees and
expenses of which shall be paid by the indemnifying party. No such third party claim may be
settled by the indemnifying party or the indemnified party (unless, in the case of a settlement by
the indemnifying party, such settlement includes an unconditional release of the indemnified party
from all liability arising out of such claim or proceeding and does not include any relief other
than the payment of monetary damages) without the prior written consent of the other, which consent
shall not be unreasonably withheld.



     (g) If the indemnification provided for under paragraph (d) or (e) of this Exhibit A shall for
any reason be held by a court to be unavailable to an indemnified party under paragraph (d) or (e)
hereof in respect of any loss, claim, damage or liability, or any action in respect thereof, then,
in lieu of the amount paid or payable under paragraph (d) or (e) hereof, the indemnified party and
the indemnifying party under paragraph (d) or (e) hereof shall contribute to the aggregate losses,
claims, damages and liabilities, (1) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the prospective seller of securities covered by the
registration statement which resulted in such loss, claim, damage or liability, or action in
respect thereof, with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant equitable
considerations or (2) if the allocation provided by clause (1) above is not permitted by applicable
law, in such proportion as shall be appropriate to reflect the relative fault of the Company and
such prospective seller from the offering of the securities covered by such registration statement.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this
paragraph (i) were determined by pro rata allocation or by any other method of allocation which
does not take account the equitable considerations referred to in this paragraph. 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. In addition, no person shall be obligated to contribute hereunder any amounts
in payment for any settlement of any action or claim effected without such person’s consent, which
consent shall not be unreasonably withheld.



     (h) Any underwriter overallotment option shall be made available by the Selling Stockholder
solely from its owned Registrable Shares.



     (i) Capitalized terms used and not defined in this Exhibit A shall have the meanings
set forth in the Agreement.




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