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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 10, 1995
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KERR GROUP, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 1-7272 95-0898810
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
</TABLE>
1840 CENTURY PARK EAST, LOS ANGELES, CALIFORNIA 90067
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(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (310) 556-2200
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NOT APPLICABLE
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(Former name or former address, if changed from last report)
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ITEM 5. OTHER EVENTS
On May 10, 1995, Kerr Group, Inc., a Delaware corporation (the
"Registrant"), contributed 250,000 shares of its common stock, par value $0.50
per share ("Common Stock"), to the trust (the "Trust") created pursuant to a
certain Trust Agreement between the Registrant and PNC Bank, National
Association, dated as of February 26, 1994, under the Kerr Group, Inc.
Retirement Income Plan. On May 11, 1995, the Registrant issued a press
release, a copy of which is attached hereto as Exhibit 1 and incorporated
herein by reference. The Trust currently holds 118,200 shares of the Company's
Common Stock. Immediately following such contribution, all 368,200 shares of
Common Stock held by the Trust will be held in a single segregated account in
the Trust (the "Segregated Account"). In connection with this contribution,
the Registrant has also agreed to grant certain registration rights with
respect to the shares of Common Stock held in the Segregated Account pursuant
to a Registration Rights Agreement, dated as of May 10, 1995, a copy of which
is attached hereto as Exhibit 2 and incorporated herein by reference, between
the Registrant and U.S. Trust Company of California, N.A., in its capacity as
investment manager of the Segregated Account.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of businesses acquired: None.
(b) Pro forma financial information: None.
(c) Exhibits:
Exhibit 1 Text of Press Release issued by Kerr Group, Inc.,
dated May 11, 1995.
Exhibit 2 Registration Rights Agreement, dated as of May 10,
1995, by and between Kerr Group, Inc. and U.S. Trust
Company of California, N.A., a national banking
association, in its capacity as duly appointed and
acting investment manager of a segregated account
held in the trust created pursuant to a certain Trust
Agreement between Kerr Group, Inc. and PNC Bank,
National Association, dated as of February 26, 1994,
under the Kerr Group, Inc. Retirement Income Plan
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
KERR GROUP, INC.
By: /s/ D. GORDON STRICKLAND
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D. Gordon Strickland
Senior Vice President and
Chief Financial Officer
May 15, 1995
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EXHIBIT INDEX
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<CAPTION>
Exhibit No. Description
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<S> <C>
1 Text of Press Release issued by Kerr Group, Inc., dated May 11, 1995
2 Registration Rights Agreement, dated as of May 10, 1995, by and between Kerr Group,
Inc. and U.S. Trust Company of California, N.A., a national banking association, in
its capacity as duly appointed and acting investment manager of a segregated account
held in the trust created pursuant to a certain Trust Agreement between Kerr Group,
Inc. and PNC Bank, National Association, dated as of February 26, 1994, under the
Kerr Group, Inc. Retirement Income Plan
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[KERR LETTERHEAD]
EXHIBIT 1
FOR IMMEDIATE RELEASE
KERR CONTRIBUTES STOCK TO PENSION PLAN
LOS ANGELES, CALIFORNIA (May 11, 1995) -- Kerr Group, Inc. (NYSE:KGM),
announced today that it contributed 250,000 shares of its Common Stock, at a
price of $7.56 per share, to the Kerr Group, Inc. Retirement Income Plan. The
contribution reduced Kerr's pension liability by approximately $1,900,000.
Kerr, headquartered in Los Angeles, is a major producer of plastic
packaging products and home canning supplies.
# # #
Company Contact: D. Gordon Strickland
Senior Vice President, Finance and
Chief Financial Officer
(310) 284-2585
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EXHIBIT 2
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REGISTRATION RIGHTS AGREEMENT
between
KERR GROUP, INC.
and
U.S. TRUST COMPANY OF CALIFORNIA, N.A.
__________________
May 10, 1995
__________________
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REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of May 10, 1995, by
and between Kerr Group, Inc., a Delaware corporation (the "Company"), and U.S.
Trust Company of California, N.A., a national banking association, in its
capacity as duly appointed and acting investment manager (the "Manager") of a
segregated account held in the trust (the "Trust") created pursuant to a
certain Trust Agreement between the Company and PNC Bank, National Association,
dated as of February 26, 1993, under the Kerr Group, Inc. Retirement Income
Plan (the "Plan").
R E C I T A L S :
WHEREAS, the Trust currently holds 118,200 shares of the
Company's Common Stock ("Common Stock"), par value $0.50 per share; and
WHEREAS, the Company has agreed to contribute an additional
250,000 shares of its Common Stock to the Trust; and
WHEREAS, all 368,200 shares of Common Stock held by the Trust
immediately following such contribution will be held in a single segregated
account in the Trust (the "Segregated Account"); and
WHEREAS, the Manager has been appointed as a "fiduciary" of
the Plan, as defined in Section 3(21) of the Employee Retirement Income
Security Act of 1974, as amended, with the authority to act on behalf of the
Plan with respect to all assets held in the Segregated Account; and
WHEREAS, the Company has agreed to grant the Manager certain
registration rights with respect to shares of Common Stock held in the
Segregated Account, on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the parties hereby agree as follows:
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SECTION 1. REGISTRATION RIGHTS
(a) Definitions.
As used in this Section 1:
(i) the terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Act (and any post-effective amendments filed
or required to be filed) and the declaration or ordering of effectiveness of
such registration statement;
(ii) the term "Registrable Securities" means (A) shares of
Common Stock held in the Segregated Account or by a Permitted Transferee (as
herein defined) and (B) any capital stock of the Company issued as a dividend
or other distribution with respect to, or in exchange for or in replacement of,
the shares of Common Stock referred to in clause (A) above;
(iii) the term "Holder" shall mean any holder of
Registrable Securities;
(iv) the term "Initiating Holder" shall mean any Holder or
Holders who in the aggregate are Holders of more than 25% of the then
outstanding Registrable Securities;
(v) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Act;
(vi) "Registration Expenses" shall mean all expenses
incurred by the Company in compliance with Sections 1(b) and (c) hereof,
including, without limitation, the fees and disbursements of counsel for the
Holders in an amount not to exceed $10,000, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, listing fees and expenses and the expense of any special
audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company);
(vii) "Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the sale of Registrable
Securities;
(viii) "Act" shall mean the Securities Act of 1933, as
amended; and
(ix) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(b) Requested Registration.
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(i) Request for Registration. If the Company shall
receive from an Initiating Holder, at any time, a written request that the
Company effect any registration with respect to all or a part of the
Registrable Securities, the Company will:
(A) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(B) as soon as practicable, use its diligent best efforts
to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations
issued under the Act) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request
received by the Company within 30 business days after written notice
from the Company is given under Section 1(b)(i)(A) above; provided that
the Company shall not be obligated to effect, or take any action to
effect, any such registration pursuant to this Section 1(b):
(w) In any particular jurisdiction in which the
Company would be required to execute a general consent to
service of process in effecting such registration,
qualification or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be
required by the Act or applicable rules or regulations
thereunder; or
(x) After the Company has effected three (3) such
registrations pursuant to this Section 1(b) and such
registrations have been declared or ordered effective;
provided, that not more than two such registrations shall
involve underwritten offerings; or
(y) If the Registrable Securities requested by all
Holders to be registered pursuant to such request do not have
an anticipated aggregate public offering price (before any
underwriting discounts and commissions) of not less than
$1,000,000; or
(z) within six (6) months immediately following
the effective date of any registration statement pertaining to
a firmly underwritten offering of equity securities of the
Company in which the Holders were permitted to participate as
set forth in Sections 1(b) or (c)
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The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 1(b)(ii) below,
include other securities of the Company which are held by officers or directors
of the Company, or which are held by persons who, by virtue of agreements with
the Company, are entitled to include their securities in any such registration.
The registration rights set forth in this Section 1 shall be
assignable, in whole or in part, to any transferee of Common Stock (who shall
be bound by all obligations of this Section 1) who shall acquire at least
50,000 shares of Common Stock (a "Permitted Transferee").
(ii) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request made
pursuant to Section 1(b).
If officers or directors of the Company holding other
securities of the Company shall request inclusion in any registration pursuant
to Section 1(b), or if holders of securities of the Company other than
Registrable Securities who are entitled, by contract with the Company or
otherwise, to have securities included in such a registration (the "Other
Stockholders") request such inclusion, the Holders shall offer to include the
securities of such officers, directors and Other Stockholders in the
underwriting and may condition such offer on their acceptance of the further
applicable provisions of this Section 1. The Holders whose shares are to be
included in such registration and the Company shall (together with all
officers, directors and Other Stockholders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for such underwriting by the Initiating Holders from a list of
underwriters supplied by the Company. Notwithstanding any other provision of
this Section 1(b), if the representative determines that marketing factors
require a limitation on the number of shares to be underwritten, the securities
of the Company held by officers or directors of the Company and the securities
held by Other Stockholders shall be excluded from such registration to the
extent so required by such limitation. If, after the exclusion of such shares,
further reductions are still required, the number of shares included in the
registration by each Holder shall be reduced on a pro rata basis (based on the
number of shares held by such Holder), by such minimum number of shares as is
necessary to comply with such request. No Registrable Securities or any other
securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any officer,
director or Other Stockholder who has requested inclusion in such registration
as provided above disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company, the underwriter
and the Initiating Holders. The securities so withdrawn shall also be
withdrawn from registration. If the underwriter has not limited the number of
Registrable Securities or other
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securities to be underwritten, the Company may include its securities for its
own account in such registration if the representative so agrees and if the
number of Registrable Securities and other securities which would otherwise
have been included in such registration and underwriting will not thereby be
limited.
(iii) Notwithstanding anything herein to the contrary, if
the Company shall furnish to Initiating Holders, a certificate signed by the
President or Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, then the Company shall have the right to defer such
filing for a period of not more than 120 days after receipt of the request of
the Initiating Holders; provided, however, that the Company may not utilize
this right more than once in any twelve (12) month period.
(c) Company Registration.
(i) If the Company shall determine to register any of its
equity securities either for its own account or for the account of a security
holder or holders exercising their respective demand registration rights, other
than a registration relating solely to employee benefit plans, or a
registration relating solely to a Commission Rule 145 transaction, or a
registration on any registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, the Company will:
(A) promptly give to each of the Holders a written notice
thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made by the Holders within thirty
(30) days after receipt of the written notice from the Company
described in clause (i) above, except as set forth in Section 1(c)(ii)
below. Such written request may specify all or a part of the Holders'
Registrable Securities.
(ii) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise each of the Holders as a part of the
written notice given pursuant to Section 1(c)(i)(A). In such event, the right
of each of the Holders to registration pursuant to this Section 1(c) shall be
conditioned upon such Holders' participation in such underwriting and the
inclusion of such Holders' Registrable
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Securities in the underwriting to the extent provided herein. The Holders
whose shares are to be included in such registration shall (together with the
Company and the Other Stockholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for underwriting by
the Company. Notwithstanding any other provision of this Section 1(c), if the
representative determines that marketing factors require a limitation on the
number of shares to be underwritten, the Company shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated in the following manner: The securities of the Company held by
officers, directors and Other Stockholders of the Company (other than
securities held by holders who by contractual right demanded such registration
("Demanding Holders")) shall be excluded from such registration and
underwriting to the extent required by such limitation. If, after the
exclusion of such shares, further reductions are still required, the number of
shares that may be included in the registration and underwriting by each of the
Holders shall be reduced, on a pro rata basis (based on the number of shares
held by such Holder), by such minimum number of shares as is necessary to
comply with such limitation; and if further reductions are still required, the
number of shares that may be included in the registration and underwriting by
each of the Demanding Holders shall be reduced by such minimum number of shares
as is necessary to comply with such limitation. If any of the Holders or any
officer, director or Other Stockholder disapproves of the terms of any such
underwriting, such person may elect to withdraw therefrom by written notice to
the Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
(iii) Number and Transferability. Each of the Holders shall
be entitled to have its shares included in an unlimited number of registrations
pursuant to this Section 1(c). The registration rights granted pursuant to
this Section 1(c) shall be assignable, in whole or in part, to any Permitted
Transferee (who shall be bound by all obligations of this Section 1).
(d) Expenses of Registration. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Section 1 shall be borne by the Company, and all Selling
Expenses shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of their shares so registered; provided; however,
that the Company shall not be required to pay any Registration Expenses if, as
a result of the withdrawal of a request for registration by any of the Holders,
as applicable, the registration statement does not become effective, in which
case each of the Holders and Other Stockholders requesting registration shall
bear such Registration Expenses pro rata on the basis of the number of their
shares so included in the registration request, and provided, further, that
such registration shall not be counted as a registration pursuant to Section
1(b)(i)(B)(x).
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(e) Registration and Listing Procedures. In the case of
each registration effected by the Company pursuant to Section 1, the Company
will keep the Holders, as applicable, advised in writing as to the initiation
of each registration and as to the completion thereof. At its expense, the
Company will:
(i) keep such registration effective for a period of
ninety (90) days or until the Holders, as applicable, have completed
the distribution described in the registration statement relating
thereto, whichever first occurs; provided, however, that (A) such
90-day period shall be extended for a period of time equal to the
period during which the Holders, as applicable, refrain from selling
any securities included in such registration in accordance with
provisions in Section 1(i) hereof; and (B) in the case of any
registration of Registrable Securities on Form S-3 which are intended
to be offered on a continuous or delayed basis, such 90-day period
shall be extended until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Act, permits an
offering on a continuous or delayed basis, and provided further that
applicable rules under the Act governing the obligation to file a
post-effective amendment permit, in lieu of filing a post-effective
amendment which (y) includes any prospectus required by Section 10(a)
of the Act or (z) reflects facts or events representing a material or
fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be
included in (y) and (z) above to be contained in periodic reports filed
pursuant to Section 12 or 15(d) of the Exchange Act in the registration
statement; and
(ii) furnish such number of prospectuses and other
documents incident thereto as each of the Holders, as applicable, from
time to time may reasonably request; and
(iii) use its best efforts to obtain a listing of the
Registrable Securities on the New York Stock Exchange (or on any other
exchange on which the Common Stock is then listed).
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each person
controlling each of the Holders, with respect to each registration which has
been effected pursuant to this Section 1, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not
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misleading, and will reimburse each of the Holders, each of its officers,
directors and partners, and each person controlling each of the Holders, each
such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omission based upon written information
furnished to the Company by the Holders or underwriter and stated to be
specifically for use therein.
(ii) Each of the Holders will, if Registrable Securities
held by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of the Act and the rules and
regulations thereunder, each Other Stockholder and each of their officers,
directors, and partners, and each person controlling such Other Stockholder
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document made by such Holder, or any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements by such Holder therein not
misleading, and will reimburse the Company and such Other Stockholders,
directors, officers, partners, persons, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
in each case to the extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by such Holder and stated to be specifically for use therein; provided
that the obligations of each of the Holders hereunder shall be limited to an
amount equal to the proceeds to such Holder of securities sold as contemplated
herein.
(iii) Each party entitled to indemnification under this
Section 1(f) (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case
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the fees and expenses of counsel shall be at the expense of the Indemnifying
Party), and provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 1(f) unless the Indemnifying Party is materially
prejudiced thereby. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense
of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section
1(f) is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or expense
referred to herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the
other in connection with the statements or omissions which resulted in such
loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations. The relative fault of the Indemnifying Party and of
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten public offering
contemplated by this Agreement are in conflict with the foregoing provisions,
the provisions in such underwriting agreement shall be controlling.
(vi) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any loss,
claim, liability or damage made in a preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended prospectus
filed with the Commission pursuant to Commission Rule 424(b) (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of any
underwriter if a copy of the Final Prospectus was furnished to the underwriter
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the Act.
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(g) Information by the Holders. Each of the Holders and
each Other Stockholder holding securities included in any registration, shall
furnish to the Company such information regarding such Holder or Other
Stockholder and the distribution proposed by such Holder or Other Stockholder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Section 1.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules
and regulations of the Commission which may permit the sale of restricted
securities to the public without registration, the Company agrees to:
(i) make and keep public information available as those
terms are understood and defined in Rule 144;
(ii) file with the Commission in a timely manner all
reports and other documents required of the Company under the Act and
the Exchange Act; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company
as to its compliance with the reporting requirements of Rule 144, a
copy of the most recent annual or quarterly report of the Company, and
such other reports and documents so filed as the Holder may reasonably
request in availing itself of any rule or regulation of the Commission
allowing the Holder to sell any such securities without registration.
(i) "Market Stand-off" Agreement. Each of the Holders agrees, if
requested by the Company and the lead underwriter of Common Stock (or other
securities) of the Company, not to sell or otherwise transfer or dispose of any
Common Stock (or other securities) of the Company held by such Holder during
the not more than 180-day period following the effective date of a registration
statement of the Company filed under the Act, provided that all officers and
directors of the Company enter into similar agreements.
If requested by the underwriters, the Holders shall execute a
separate agreement to the foregoing effect. The Company may impose
stop-transfer instructions with respect to the shares (or securities) subject
to the foregoing restriction until the end of said not more than 180-day
period. The provisions of this Section 1(i) shall be binding upon any
Permitted Transferee.
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(j) Temporary Cessation of Offers and Sales by Holders.
The Holders acknowledge that there may occasionally be times when the Company
may be required to suspend the use of the prospectus forming part of a
registration statement until such time as an amendment to such registration
statement has been filed by the Company and declared effective by the
Commission, until the prospectus is supplemented or amended to comply with the
Act, or until such time as the Company has filed an appropriate report with the
Commission under the Exchange Act. The Company shall file any necessary
amendments, supplements and reports as soon as practicable under the
circumstances. No Holder shall sell any Registrable Securities pursuant to
said prospectus during a period of not more than 45 days commencing at the time
at which the Company gives the Holder notice of the suspension of the use of
said prospectus and ending at the time the Company gives the Holder notice that
the Holder may thereafter effect sales pursuant to said prospectus, as the same
may have been supplemented or amended.
(k) Termination. The registration rights set forth in
this Section 1 shall not be available to any Holder if, in the opinion of
counsel to the Company, all of the Registrable Securities then owned by such
Holder could be sold in any 90-day period pursuant to Rule 144 under the Act.
SECTION 2. INTERPRETATION OF THIS AGREEMENT
2.1 Directly or Indirectly
Where any provision in this Agreement refers to action to be
taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
2.2 Governing Law
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to conflicts of
law principles thereof.
2.3 Paragraph and Section Headings
The headings of the sections and subsections of this Agreement
are inserted for convenience only and shall not be deemed to constitute a part
thereof.
2.4 Invalidity of Provisions
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If any provision of this Agreement is or becomes invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
2.5 Time Is of the Essence
Time is of the essence in this Agreement.
SECTION 3. MISCELLANEOUS
3.1 Notices
(a) All communications under this Agreement shall be in
writing and shall be delivered by hand or mailed by overnight courier or by
registered or certified mail:
(1) if to the Company, at 1840 Century Park East, Suite
500, Los Angeles, CA 90067, marked for attention of Chief Financial
Officer, or at such other address as the Company may have furnished the
Manager in writing; or
(2) if to the Manager, at 515 South Flower Street, Suite
2700, Los Angeles, CA 90071-2291, Attention: Trust Department,
or at such other address as the Manager may have furnished the
Company in writing.
(b) Any notice so addressed shall be deemed to be given:
if delivered by hand, on the date of such delivery; if mailed by courier, on
the first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third Business Day after the date of such
mailing.
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3.2 Successors and Assigns
This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties.
3.3 Entire Agreement; Amendment and Waiver
This Agreement constitutes the entire understanding of the
parties hereto and supersedes all prior agreements or understandings with
respect to the subject matter hereof between such parties. This Agreement may
be amended, and the observance of any term of this Agreement may be waived,
with (and only with) the written consent of the Company and the holders of a
majority of the Registrable Securities.
3.4 Counterparts
This Agreement may be executed in one or more counterparts with
the same effect as if the parties executing the counterparts had each executed
one instrument as of the date first above written.
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<PAGE> 15
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first set forth above.
KERR GROUP, INC.
By: /S/ Geoffrey A. Whynot
---------------------------------
Name: Geoffrey A. Whynot
Title: Vice President, Treasurer
U.S. TRUST COMPANY OF CALIFORNIA, N.A
By: /S/ Charles E. Wert
---------------------------------
Name: Charles E. Wert
Title: Executive Vice President
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