AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement (this "Agreement") is
made as of October 10, 1996, by and among Golden State Acquisition Corp., a
Delaware corporation (the "Company"), and the parties listed on the signature
pages hereto (collectively, the "Stockholders").
R E C I T A L S:
A. The parties hereto entered into that certain Stockholders
Agreement dated as of April 27, 1995 (the "Original Stockholders Agreement").
B. The parties to the Original Stockholders Agreement desire to
amend and restate such agreement on the terms and subject to the conditions set
forth herein.
C. The execution and delivery of this Agreement is a condition to
the purchase and sale by certain parties hereto of shares of the capital stock
of the Company pursuant to the terms of that certain Stock Purchase Agreement
dated of even date herewith (the "Stock Purchase Agreement").
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing promises, and such
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. CORPORATE GOVERNANCE.
(a) From and after the Closing Date and until the
termination of this Agreement, each Stockholder entitled to vote its shares of
capital stock shall take all actions within such Stockholder's control, and the
Company shall take all actions within its control, in each case, so that:
(i) The Board shall be comprised of
five (5) directors;
(ii) The Board shall consist of three (3) individuals
to be designated by SBIC Partners, which individuals initially shall be Xxxxxxx
X. Xxxxx, Xxxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx and (A) one (1) individual
designated by X'Xxxxx, which individual shall initially be Xxxxxxx X. X'Xxxxx
and (B) one (1) individual designated by Exeter, which individual shall
initially be Xxxxx X. Xxx;
(iii) If any of the individuals set forth in
Section 1(a)(ii) dies, becomes disabled, resigns, is removed from the Board or
sought to be removed by the party
designating such individual or is otherwise unable to continue to serve as a
director, the party designating such individual shall have the right to
designate a replacement therefor and shall notify each other member of the Board
of the identity of such replacement, and each Stockholder shall, in any case,
vote in favor of the action recommended by such party;
(iv) Xxxxxxx shall, in accordance with the terms and
conditions of the Certificate of Designations of 12% Senior Redeemable
Exchangeable Preferred Stock of the Company, be entitled, under certain
circumstances, to designate up to three individuals to the Board, in which case
the Board shall adopt a resolution of the Board of Directors of the Company
authorizing an increase in the size of the Board to provide for such additional
members;
(v) The composition of the board of directors of each
of the Company's subsidiaries, including without limitation Golden State
Vintners ("GSV") (each, a "Sub Board"), shall be the same as that of the Board;
(vi) All committees of the Board and all Sub Boards
shall contain at least a majority of members designated by SBIC Partners; and
(vii) Any committee of the Board or a Sub Board shall be
created only upon, and may be disbanded only upon, the approval of a majority of
the Board of the applicable entity.
(b) The Company shall pay the reasonable out-of-pocket
expenses incurred by each director in connection with attending the meetings of
the Board, any Sub Board, any committee thereof and related Company matters.
Additionally, except with respect to X'Xxxxx, each director shall be entitled to
an annual fee of $12,500, payable on the last day of each month in twelve equal
installments (commencing on the first month in which such director's term
commences), for each month in which such director serves on the Board, which
monthly fee shall be pro-rated to take into account the actual number of days
served. Each director shall also be entitled to receive all perquisites,
including, without limitation, any stock options, granted or provided to other
members of the Board.
(c) If any party fails to designate a representative to fill
a directorship pursuant to the terms of this Section 1, the election of an
individual to such directorship shall be accomplished in accordance with the
Company's Bylaws and applicable law.
(d) The prior written consent of SBIC Partners, which
consent shall be subject to the sole discretion of SBIC Partners, shall be
required with respect to the following actions by the Company or GSV and any
subsidiary of either entity (each, "Subsidiary"):
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(i) The merger, consolidation, sale of assets or
stock, dissolution or liquidation of the Company or GSV or any Subsidiary,
including without limitation, an initial public offering of shares of Common
Stock;
(ii) Any amendment to (A) the Company's Certificate of
Incorporation or Bylaws, (B) GSV's Articles of Incorporation or Bylaws or
(C) the Articles or Certificate of Incorporation, as the case may be, or any
other charter document of any Subsidiary;
(iii) The acquisition by the Company, GSV or any
Subsidiary, or investment in, any other business entity;
(iv) Any material change in the Company's, GSV's or any
Subsidiary's business as presently conducted;
(v) Any loan or guarantee by the Company, GSV or any
Subsidiary, or the material increase in the indebtedness of the Company, GSV or
any Subsidiary; and
(vi) (A) The making of any loan, advance or guarantee
to, or for the benefit of, (B) the sale, lease, transfer or other disposition of
any of the Company's, GSV's or any Subsidiary's properties or assets to, or for
the benefit of or (C) the purchase or lease of any property or assets from, or
the entering into or amending of any contract, agreement or understanding with,
or for the benefit of, any Affiliate of the Company, GSV or any Subsidiary
including, without limitation, any Stockholder or such Stockholder's Affiliates.
(e) The rights of any Stockholder under this Section 1 shall
terminate at such time as any Stockholder and its permitted transferees hold in
the aggregate less than 10% of the shares of Common Stock or Junior Preferred
Stock, as the case may be, initially held by such Persons on the date hereof.
(f) The Stockholders hereby authorize the Board to increase
the size of the Board as required by Section 1(a)(iv).
2. REPRESENTATIONS AND WARRANTIES; ACKNOWLEDGMENT. Each
Stockholder represents and warrants that (a) such Stockholder is the record
owner of the securities of the Company set forth opposite such Stockholder's
name on the Schedule of Stockholders attached hereto as Schedule A,(b) this
Agreement has been duly authorized, executed and delivered by such Stockholder
and constitutes the valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms and (c) such
Stockholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with, conflicts with or violates any
provision of this Agreement. Each
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Stockholder acknowledges and agrees that such Stockholder will not grant any
proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement,
unless required to do so by any law or regulation applicable to such
Stockholder.
3. PREEMPTIVE RIGHTS
(a) Except for issuances of equity securities of the Company
or options or other rights to acquire equity securities of the Company (i) in
connection with a registered public offering, (ii) to employees of the Company
or GSV pursuant to options or under a stock option plan approved by the Board of
Directors, (iii) to any financial institution in connection with the incurrence
of Indebtedness by the Company or GSV, (iv) as payment of all or a portion of
the purchase price of any business or assets thereof acquired by the Company, or
(v) upon the exercise of any option or other right described in any of clauses
(i) through (iv) above, if the Company authorizes the issuance or sale of any
equity securities of the Company or any securities containing options or rights
to acquire any equity securities of the Company (other than as a dividend on
shares of Common Stock outstanding), the Company shall first offer to sell to
each Stockholder, at the same price and on the same terms, a portion of such
securities, options or rights (the "New Securities") equal to the quotient of
(i) the number of shares of Common Stock or Junior Preferred Stock held by such
Stockholder divided by (ii) the total number of shares of Common Stock
outstanding on a fully diluted bases after giving effect to all shares of Common
Stock issuable upon conversion of any convertible securities or the exercise of
any option, warrant or similar right, whether or not such conversion right or
option, warrant or similar right is then exercisable, provided that holders of
non-voting securities shall be only entitled pursuant to this Section 3 to
acquire non-voting securities of the same class held thereby and, in that
regard, the term "New Securities" shall include such appropriate number of
non-voting securities to be acquired by such Stockholder holding non-voting
securities, in lieu of a like number of voting securities, as the case may be.
(b) In order to exercise its purchase rights pursuant to
this Section 3, a Stockholder must, within twenty (20) days after receipt of
written notice from the Company describing in reasonable detail the New
Securities being offered, the purchase price thereof, the payment terms and such
Stockholder's percentage allotment, deliver a written notice to the Company
describing its election. If all of the New Securities offered to the
Stockholders are not fully subscribed by the Stockholders, the remaining New
Securities shall be reoffered by the Company to the Stockholders purchasing
their full allotment upon the terms set forth in this Section 3 until either all
such New Securities have been subscribed for or no Stockholder subscribes for
additional New Securities, except that such Stockholder must give written notice
of its election to purchase such reoffered New Securities within ten (10) days
after receipt of notice of any such reoffer.
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(c) During the 180 days after the expiration of the offering
periods described above, the Company shall be entitled to sell any New
Securities which the Stockholders have not elected to purchase, on terms and
conditions no more favorable to the purchasers thereof than those offered to the
Stockholders. Any New Securities offered or sold by the Company after such
180-day period must be reoffered to the Stockholders pursuant to the terms of
this Section 3.
(d) If the New Securities possess voting rights, a
Stockholder may request, and the Company shall issue to the requesting
Stockholder, in place of the New Securities such Stockholder would be entitled
to purchase pursuant to this Section 3, securities that are identical to the New
Securities except that such securities (i) will be non-voting and (ii) will be
convertible into New Securities at the request of the Stockholder on a
share-for-share basis.
4. RESTRICTIONS ON TRANSFER.
(a) TRANSFER OF SECURITIES. Subject to the provisions of
this Section 4, each Stockholder and its Affiliates may sell, transfer, assign,
pledge or otherwise dispose of, whether with or without consideration and
whether voluntarily or involuntarily or by operation of law (collectively, a
"Transfer"), shares of Common Stock or Junior Preferred Stock held by them at
any time, provided that no Stockholder may Transfer or offer to Transfer any
such shares to any third party purchaser engaged, directly or indirectly, in a
business in competition with the business of the Company, GSV or any Subsidiary,
including without limitation, the business of (A) growing wine grapes on a
long-term contract basis, (B) processing, custom crushing and selling commodity
and premium wine grapes, (C) producing proprietary case goods, (D) bottling wine
for unrelated third parties on a contract basis or (E) bottling and selling wine
on a retail or wholesale basis. Prior to transferring any shares of Common
Stock or Junior Preferred Stock to any Person in accordance with the provisions
of this Section 4(a), the transferring holders of such securities shall cause
the prospective transferee to execute and deliver to the Company, for the
benefit of the Company and the other Stockholders, a counterpart of this
Agreement pursuant to which such transferee agrees to be bound as a
"Stockholder" by the provisions of this Agreement.
(b) CO-SALE RIGHT.
(i) With respect to any proposed Transfer of shares of
Common Stock or Junior Preferred Stock (collectively, the "Transfer Securities")
by any Stockholder or any of its Affiliates (collectively, the "Selling Group"),
to a Person (the "proposed purchaser"), other than pursuant to an Exempt
Transfer, as defined below, and other than with respect to any Transfer of
shares of Class E Common Stock by Xxxxxxx or its affiliates, all other
Stockholders (collectively, the "Co-Sale Stockholders") shall each have the
right (the "Co-Sale Right") to require the proposed purchaser to purchase from
each of
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them (in lieu of a portion of the Transfer Securities to be sold by the Selling
Group) up to the number of shares of Common Stock or Junior Preferred Stock, as
the case may be, owned by each such Co-Sale Stockholder that equals the sum of
(A) the number determined by multiplying the total number of Transfer Securities
by the Pro Rata Portion of such Co-Sale Stockholder and (B) any additional
shares of Common Stock or Junior Preferred Stock such Co-Sale Stockholder shall
be entitled to Transfer pursuant to Section 4(b)(ii) if any other Co-Sale
Stockholder elects not to exercise its rights hereunder. Any shares of Common
Stock or Junior Preferred Stock purchased from Co-Sale Stockholders pursuant to
this Section 4(b) shall be paid for at the same price per share and upon the
same terms and conditions as those in the proposed transfer, it being agreed,
however, that such terms and conditions do not include the making of any
representations and warranties, indemnities or other similar agreements other
than representations and warranties with respect to title of the shares being
sold and authority to sell such shares and indemnities directly related thereto.
The Selling Group shall notify each Co-Sale Stockholder in writing of each such
proposed transfer, which notice (a "Notice of Transfer") shall be delivered at
least forty-five (45) days prior to such proposed transfer and shall set forth:
(1) the number of shares of Common Stock or Junior Preferred Stock proposed to
be transferred, (2) the name and address of the proposed purchaser, (3) the
proposed amount and form of consideration and terms and conditions of payment
and purchase offered by such proposed purchaser and (4) that the proposed
purchaser has been informed of the Co-Sale Right provided for in this
Section 4(b) and has agreed to purchase shares of Common Stock or Junior
Preferred Stock in accordance with the terms of this Agreement.
(ii) The Co-Sale Right may be exercised by any Co-Sale
Stockholder by delivery of a written notice to the Selling Group (the "Co-Sale
Notice") within thirty (30) days following its receipt of the Notice of
Transfer. The Co-Sale Notice shall state the number of shares of Common Stock
or Junior Preferred Stock that such Co-Sale Stockholder proposes to include in
the proposed transfer, as determined in Section 4(b)(i), plus the number of
additional shares of Common Stock or Junior Preferred Stock, if any, that such
Co-Sale Stockholder would be willing to sell to the proposed purchaser in the
event that any of the other Co-Sale Stockholders elect not to fully exercise
their Co-Sale Rights. If any other Co-Sale Stockholder has not fully exercised
its Co-Sale Rights, the maximum amount of additional shares of Common Stock or
Junior Preferred Stock that each such Co-Sale Stockholder shall be entitled to
sell pursuant to Section 4(b)(i) shall be determined by multiplying the total
number of shares of Common Stock or Junior Preferred Stock that, under the
formula described in Section 4(b)(i), all Co-Sale Stockholders not electing to
sell shares in such proposed transfer could have elected to sell to the proposed
purchaser but elected not to so sell, by a fraction, the numerator of which is
the shares of Common Stock or Junior Preferred Stock owned by the Co-Sale
Stockholder electing to sell additional shares of Common Stock or Junior
Preferred Stock and the denominator of which is the total number of shares of
Common Stock or Junior Preferred Stock owned by all Co-Sale Stockholders that
delivered Co-Sale Notices.
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(iii) If any Co-Sale Notice is received by the Selling
Group from any Co-Sale Stockholder during the thirty (30) day period referred to
above and the proposed purchaser does not purchase all of the shares of Common
Stock or Junior Preferred Stock set forth in each such Co-Sale Notice received
by the Selling Group on the same terms and conditions as specified in the Notice
of Transfer, then the Selling Group shall not be permitted to sell any Transfer
Securities to the proposed purchaser in the proposed transfer or grant any
rights with respect thereto. If no Co-Sale Notices are received by the Selling
Group during the thirty (30) day period referred to above, the Selling Group
shall have the right, for a period of forty-five (45) days after the expiration
of the thirty (30) day period during which a Notice of Transfer can be delivered
by a Co-Sale Stockholder, to transfer the Transfer Securities specified in the
Notice of Transfer referred to in the last sentence of the preceding paragraph
on terms and conditions no more favorable than those stated in the Co-Sale
Notice and in accordance with the provisions of this Section 4.
(iv) Each Co-Sale Stockholder electing to participate
in a proposed Transfer shall deliver to the purchaser specified in the Notice of
Transfer, against payment of the total purchase price for the securities to be
purchased at the price per share specified in such Notice of Transfer (with such
price per share to be determined as if all shares of Junior Preferred Stock are
converted into shares of Common Stock in the manner set forth in the Junior
Certificate of Designation), a certificate or certificates representing the
number of shares of Common Stock or Junior Preferred Stock, as the case may be,
which it has elected to sell pursuant to this Section 4(b), together with
appropriate instruments of transfer duly endorsed in blank.
(c) RIGHT OF FIRST OFFER UPON TRANSFER.
(i) Except with respect to an Exempt Transfer, if any
Stockholder or its respective Affiliates (each a "proposed seller") wishes to
Transfer all or any portion of their respective shares of Common Stock or Junior
Preferred Stock (collectively, the "Offered Securities"), then the proposed
seller shall notify the Board of Directors in writing of its desire to Transfer
such Offered Securities, such notice (the "Proposal Notice") to set out with
particularity the identity and number of Offered Securities that the proposed
seller wishes to Transfer. The Company shall have a period of five (5) days, if
the Proposal Notice is from Xxxxxxx, or twenty (20) days for any other Proposal
Notice to inform the proposed seller, in writing (the "Purchase Proposal"), of
the price (the "Proposed Purchase Price") that the Company would be willing to
pay, in cash, for the number of Offered Securities set forth in the Proposal
Notice. The Company may assign to any third party, including without
limitation, any Stockholder (collectively, an "Assignee"), the right to make a
Purchase Proposal to the proposed seller within such twenty (20) day period.
(ii) Notwithstanding anything set forth in
Section 4(c)(i) to the contrary, if SBIC Partners is the proposed seller, then
the SBIC Partners designees on the
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Board of Directors shall only have one (1) vote with respect to the terms and
conditions of the Purchase Proposal, if any, to be made by the Company to such
proposed seller with respect to the Offered Securities.
(iii) The proposed seller shall have the right, within
twenty (20) days after the receipt of the Purchase Proposal to accept such
proposal and to transfer the Offered Shares to the Company or the Assignee, as
the case may be. If the proposed seller accepts such Purchase Proposal, the
Company or the Assignee, as the case may be, and the proposed seller shall enter
into a stock purchase agreement with respect to the Transfer of the Offered
Shares, such agreement to be on terms and conditions reasonably acceptable to
such parties, it being understood that such proposed seller shall not be
required to make any representations, warranties or indemnities thereunder,
except with respect to title to the Offered Shares and authority to sell such
shares.
(iv) If the proposed seller does not accept the
Purchase Proposal, the proposed seller shall have the right, for a period of
ninety (90) days after receipt of the Purchase Proposal (the "Sale Period"), to
Transfer all, but not less than all, of the Offered Securities set forth in the
Proposal Notice to any third party for an aggregate price for such Offered
Securities that is greater than the Proposed Purchase Price and on terms that
are at least as favorable as set forth in the Purchase Proposal. If the
proposed seller is not able to consummate such purchase and sale prior to the
expiration of the Sale Period, the proposed seller shall not be entitled to
Transfer any of its shares of Common Stock or Junior Preferred Stock without
first complying with the requirements of Section 4(c)(i).
(v) The provisions of this Section 4(c) and of
Section 4(b) shall not apply to Transfers by and between any Stockholder and its
respective Affiliates, so long as each such transferee has agreed in writing to
be bound by this Agreement, or to Transfers by the Stockholders or any of their
respective Affiliates pursuant to an effective registration statement under the
Securities Act (each, an "Exempt Transfer").
(d) RIGHTS TO COMPEL SALE.
(i) If SBIC Partners (also referred to herein
sometimes as the "Transferring Stockholder"), proposes to Transfer all, but not
less than all, of any shares of Common Stock held by it to another Person (other
than an Affiliate), then the Transferring Stockholder may, at its option,
require the remaining Stockholders and their respective Affiliates
(collectively, the "Remaining Stockholders"), subject to the rights of the
holders of Class E Common Stock under the Xxxxxxx Securities Purchase Agreement,
to sell all of the shares of Common Stock and/or Junior Preferred Stock owned by
them (collectively, the "Designated Securities") to such Person for the same
consideration on a per share basis (determined as if all shares of Junior
Preferred Stock were converted to Common Stock in the manner set forth in the
Junior Certificate of Designation) and otherwise on the same
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terms and conditions upon which the Transferring Stockholder is selling its
Common Stock and/or Junior Preferred Stock, provided that any Remaining
Stockholders selling equity securities of the Company pursuant to this
Section 4(d) will not be required to make any representations, warranties or
indemnities in connection with such sale other than representations and
warranties with respect to title of the shares being sold and authority to sell
such shares and indemnities directly related thereto.
(ii) The Transferring Stockholder shall send written
notice of the exercise of its rights pursuant to this Section 4(d) to each of
the Remaining Stockholders, which notice of transfer shall be delivered at least
thirty (30) days prior to such Transfer, and shall also set forth the
consideration per share of Designated Securities to be paid by the third party
purchaser and the other terms and conditions of such Transfer. On or prior to
the closing date of such Transfer, each of the Remaining Stockholders shall
deliver to the purchaser of the Designated Securities certificates representing
the Designated Securities held by such Remaining Stockholders, together with
appropriate instruments of transfer, duly endorsed in blank, and with all other
documents required to be executed in connection with such transaction, against
payment of the total purchase price for the Designated Securities to be
purchased (at the price per share specified in the Notice of Transfer referred
to in this Section 4(d)) in accordance with instructions delivered by such
Remaining Stockholder to the Transferring Stockholder not later than the day
immediately preceding the closing of such Transfer. In the event that a
Remaining Stockholder should fail to deliver such certificates to the purchaser
of the Designated Securities in the manner set forth above, the Company shall
cause the books and records of the Company to show that such Designated
Securities are bound by the provisions of this Section 4(d) and that such
Designated Securities shall be transferred only to the third party purchaser
upon surrender for transfer by the holder thereof.
(iii) Simultaneously with the consummation of the sale
of equity securities of the Company held by the Transferring Stockholder and of
Designated Securities held by the Remaining Stockholders pursuant to this
Section 4(d), the Company shall furnish such evidence of the completion and time
of completion of such sale or other disposition and the terms thereof as may be
reasonably requested by such Remaining Stockholders.
(e) CONDITIONS TO THE COMPANY'S EFFECTING A TRANSFER. The
Company agrees not to effect any Transfer of shares of Common Stock or Junior
Preferred Stock by any Stockholder pursuant to the provisions of this Section 4
until the Company has received evidence reasonably satisfactory to the Company
that the rights granted to certain of the Stockholders pursuant to this
Section 4, if applicable to such Transfer, have been complied with in all
respects. Any Person purchasing any shares of Common Stock or Junior Preferred
Stock pursuant to this Section 4 shall deliver to the Company, as a precondition
to consummating such purchase and sale,(i) an appropriate investment
representation as required by counsel to the Company, (ii) written evidence
reasonably satisfactory to the
9
Company to the effect that (A) such Person is an "accredited investor," as such
term is defined under Rule 501 under the Securities Act, and that (B) such
Person has consented to be bound by the terms of this Agreement to the same
extent as the seller of such securities and (iii) in the case of any Transfer to
any transferee any other documentation, approval, consent, notice or opinion of
counsel that may be reasonably requested by the Company or required by this
Agreement or applicable law in order to effectuate the purchase and sale of such
securities.
5. SALE OF THE COMPANY
(a) Any time after the Closing Date, at the request of SBIC
Partners, the Company shall engage a reputable, nationally-recognized
underwriter reasonably acceptable to the Board, and, with the assistance of such
underwriter and the advise of SBIC Partners, the Company shall (i) solicit
interests in and initiate discussions with potential purchasers of the assets or
capital stock of the Company and/or GSV or (ii) reorganize, recapitalize or
refinance the senior or subordinated debt or the equity of the Company in a
manner reasonably acceptable to SBIC Partners (collectively, a "Sale of the
Company"). In connection with such a Sale of the Company, except as otherwise
set forth in this Section 5(a), all shares of Common Stock shall be treated
equally, share and share alike. Each holder of Common Stock and Junior
Preferred Stock shall vote for, consent to, and raise no objections against,
such Sale of the Company. If the Sale of the Company is structured as (ix) a
merger or consolidation, each holder of Common Stock and Junior Preferred Stock
shall waive any dissenters rights, appraisal rights or similar rights in
connection with such merger or consolidation or (x) a sale of Stock, each holder
of Common Stock and Junior Preferred Stock shall agree to sell all of its shares
of Common Stock and Junior Preferred Stock and rights to acquire shares of
Common Stock on the terms and conditions approved by SBIC Partners. Each holder
of Common Stock and Junior Preferred Stock shall take all necessary or desirable
actions in connection with the consummation of the Sale of the Company as
requested by SBIC Partners. The obligations of any holder of Class E Common
Stock shall be subject to the right of such holder under the Xxxxxxx Securities
Purchase Agreement. The obligations of the holders of Junior Preferred Stock in
this Section 5(a) shall be subject to the rights of such holders to cause the
Company to redeem their shares in accordance with the provisions of the Junior
Certificate of Designations.
(b) The obligations of the holders of Common Stock and
Junior Preferred Stock with respect to the Sale of the Company are subject to
the satisfaction of the following conditions: (i) upon the consummation of the
Sale of the Company, each holder of Common Stock and Junior Preferred Stock
shall receive the same form of consideration and the amount of consideration as
set forth in Section 6 below; (ii) if any holders of a class of Common Stock or
Junior Preferred Stock are given an option as to the form and amount of
consideration to be received, each holder of such class of Common Stock and
Junior Preferred Stock shall be given the same option; and (iii) each holder of
then currently
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exercisable rights to acquire shares of a class of Common Stock and Junior
Preferred Stock shall be given an opportunity to either (A) exercise such rights
prior to the consummation of the Sale of the Company and participate in such
sale as holders of such class of Common Stock and Junior Preferred Stock or
(B) upon the consummation of the Sale of the Company, receive in exchange for
such rights consideration equal to the amount determined by multiplying (1) the
same amount of consideration per share of Common Stock and Junior Preferred
Stock received by holders of such class of Common Stock and Junior Preferred
Stock in connection with the sale of the Company less the exercise price per
share of Common Stock and Junior Preferred Stock of such rights to acquire such
class of Common Stock and Junior Preferred Stock by (2) the number of shares of
such class of Common Stock and Junior Preferred Stock represented by such
rights.
6. DISTRIBUTION UPON SALE OF THE COMPANY. In the event of a Sale
of the Company, each Stockholder shall receive in exchange for its Common Stock
and Junior Preferred Stock the same portion of the aggregate consideration from
such Sale of the Company that such Stockholder would have received if such
aggregate consideration had been distributed by the Company in complete
liquidation pursuant to the rights and preferences set forth in the Company's
Certificate of Incorporation as in effect immediately prior to such Sale of the
Company. Each holder of Common Stock and Junior Preferred Stock shall take all
necessary or desirable actions in connection with the distribution of the
aggregate consideration from such Sale of the Company as requested by the
Company.
7. LEGEND. Each certificate evidencing all of the Company's
outstanding Common Stock and Junior Preferred Stock held by each of the
Stockholders, each certificate issued in exchange for any Junior Preferred Stock
held by any Stockholder and each certificate issued upon exercise of any option,
warrant, convertible securities and other rights to acquire shares of Common
Stock or Junior Preferred Stock held by any Stockholder shall be stamped or
otherwise imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED HEREBY (A) HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR
TRANSFERRED EXCEPT IN A TRANSACTION REGISTERED UNDER SUCH ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION THEREFROM UNDER SAID ACT OR THE
RULES AND REGULATIONS PROMULGATED THEREUNDER AND (B) ARE SUBJECT TO
THE PROVISIONS, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER, SET
FORTH IN THAT CERTAIN AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
DATED AS OF OCTOBER 10, 1996 BY AND AMONG THE COMPANY AND THE
SIGNATORIES THERETO. A COPY OF SUCH STOCKHOLDERS AGREEMENT SHALL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST."
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The legend immediately set forth above shall be removed from the certificates
evidencing any shares of capital stock upon an Initial Public Offering.
8. TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or
attempted Transfer of any shares of Common Stock or Junior Preferred Stock in
violation of any provision of this Agreement shall be void, AB INITIO, and the
Company shall not record such Transfer on its books or treat any purported
transferee(s) of such Common Stock or Junior Preferred Stock as the owner of
such shares for any purpose.
9. DEFINED TERMS. For purposes of this Agreement, the following
terms shall have the following meanings:
"Affiliate" shall mean, with respect to any Person, (i) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person, (ii) any spouse, immediate family
member or other relative who has the same principal residence of any Person
described in clause (i) above, (iii) any trust in which any such Persons
described in clause (i) or (ii) above has a beneficial interest and (iv) any
corporation or other organization of which any such Persons described in clause
(i) or (ii) above collectively own more than 50% of the equity of such entity.
For purposes of this definition, ownership of 10% or more of the voting common
equity of a Person shall be deemed to be control of such Person.
"Certificate" shall mean the Certificate of Incorporation of
the Company, as originally filed with the Delaware Secretary of State on
April 18, 1995 and as amended to date.
"Closing Date" shall mean October 10, 1996.
"Common Stock" shall mean, collectively: (i) the Class B
Common Stock and the Class E Common Stock of the Company, in each case,
purchased or otherwise acquired by any Stockholder; (ii) any equity securities
issued or issuable directly or indirectly with respect to the common stock
referred to in clause (i) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization; and (iii) any other shares of any class or series of
common stock of the Company held by a Stockholder.
"Exeter" shall collectively mean Exeter Equity Partners, L.P.,
a Delaware limited partnership, and Exeter Venture Lenders, L.P., a Delaware
limited partnership.
"Xxxxxxx" shall mean the Xxxx Xxxxxxx Mutual Life Insurance
Company.
12
"Xxxxxxx Securities Purchase Agreement" shall mean that
certain Securities Purchase Agreement dated April 21, 1995, as amended from time
to time, by and among Xxxxxxx, GSV and the Company.
"Indebtedness" shall mean all indebtedness for borrowed money,
all indebtedness under revolving credit agreements, all capitalized lease
obligations and all guarantees of any of the foregoing.
"Initial Public Offering" shall mean the consummation of an
initial public offering of at least twenty percent (20%) of the Company's Common
Stock that results in gross proceeds to the Company of at least Thirty-Five
Million Dollars ($35,000,000).
"Junior Certificate of Designation" shall mean the Certificate
of Powers, Designations, Preferences and Relative, Participatory, Optional and
Other Special Rights of Junior Exchangeable Preferred Stock and Qualifications,
Limitations and Restrictions thereof, as filed with the Delaware Secretary of
State on April 25, 1995.
"Junior Preferred Stock" shall mean the 6% Junior Exchangeable
Preferred Stock of the Company, par value $0.01 per share.
"X'Xxxxx" shall mean Xxxxxxx X. X'Xxxxx, an individual.
"Person" shall mean any corporation, partnership, limited
liability company, trust, individual, unincorporated organization or a
governmental agency or political subdivision thereof, as the context may
require.
"Pro Rata Portion" shall mean, with respect to each
Stockholder, the proportion that the number of shares of Common Stock issued to
and held, or issuable upon conversion of shares of Junior Preferred Stock, such
conversion of shares to be determined as if all such shares of Junior Preferred
Stock were converted into shares of Common Stock in the manner set forth in the
Junior Certificate of Designation.
"SBIC Partners" shall mean SBIC Partners, L.P., a Texas
limited partnership, and each Affiliate thereof.
10. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company and SBIC Partners,
provided that no such modification, amendment or waiver shall adversely affect
the rights hereunder of any Stockholder vis-a-vis the other Stockholders without
the approval in writing of such affected Stockholders. The failure of any party
to enforce any of the provisions of this Agreement shall in no way be
13
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
11. TERMINATION. This Agreement shall terminate on the
consummation of an Initial Public Offering.
12. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or Rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
13. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way individually without limitation, the Original Stockholders Agreement,
which shall for all intents and purposes be null and void hereafter.
14. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Junior Preferred Stock or Common Stock, respectively, and the
respective successors and assigns of each of them, so long as they hold Junior
Preferred Stock or Common Stock, respectively.
15. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
16. REMEDIES. The Company and the Stockholders shall be entitled
to enforce their rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor, whether at law or in equity. The parties
hereto agree and acknowledge that money damages would not be an adequate remedy
for any breach of the provisions of this Agreement and that the Company or any
Stockholder may in its sole discretion apply to any
14
court of law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
17. NOTICES. Any notice provided for in this Agreement shall be
in writing and shall be either personally delivered, mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) or sent via facsimile to any recipient, in the case of the Company, at
the address and facsimile number on the signature page hereto, and, with respect
to all other requests, at the address and facsimile number indicated beneath
such recipient's name on SCHEDULE A hereto and to any subsequent holder of
Common Stock or Junior Preferred Stock, as the case may be, subject to this
Agreement at such address as indicated by the Company's records, or at such
address and facsimile number or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
Notices shall be deemed to have been given hereunder when delivered personally,
three days after deposit in the U.S. mail, one day after deposit with a
reputable overnight courier service and one day after confirmation of facsimile
transmission is received.
18. GOVERNING LAW. All issues and questions concerning the
construction, validity, interpretation and enforceability of this Agreement and
the schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of California, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California.
19. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
COMPANY: GOLDEN STATE ACQUISITION CORP.,
a Delaware corporation
By:
-------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Chief Executive Officer
Address:
00 Xxxx Xxx Xxxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx, XX 00000
Fax No.: (000) 000-0000
STOCKHOLDERS:
SBIC PARTNERS: SBIC PARTNERS, L.P.,
a Texas limited partnership
By: Xxxxxxx Xxxxxxx & Xxxxx X.X.,
General Partner
By: Xxxxxxx Xxxxxxx & Xxxxx Venture Co.,
General Partner
By:
-------------------------------
Xxxxxxx X. Xxxxx
Office of the President
X'XXXXX: -----------------------------------
Xxxxxxx X. X'Xxxxx
16
XXXXXXX: XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY
By:
-------------------------------
Xxxxxxx Xxxxxx, Senior
Investment Officer
HOLDERS OF JUNIOR
PREFERRED STOCK:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By:
-------------------------------
Xxxx X. Xxxxx, Vice President
MASSMUTUAL PARTICIPATION INVESTORS
By:
-------------------------------
Xxxx X. Xxxxx, Vice President
MASSMUTUAL CORPORATE INVESTORS
By:
-------------------------------
Xxxx X. Xxxxx, Vice President
BANKAMERICA INVESTMENT CORPORATION
By:
-------------------------------
Xxxxxxx X. Xxxx, Principal
XXXXXXX X. O'XXXXX
XXXXX BOARD
By:
-------------------------------
Xxxxxxx X. X'Xxxxx
17
115595.3
18
SCHEDULE A
SCHEDULE OF STOCKHOLDERS
Name of Stockholder Capital Stock
--------------------------------- --------------------------
SBIC Partners, L.P. 1,398,663 shares of
000 Xxxx Xxxxxx, Class X Xxxxxx Xxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Fax No.: (000) 000-0000
Xxxxxxx X. X'Xxxxx 206,611 shares of Class B
60 East Xxx Xxxxxxx Xxxxx Common Stock
Blvd., Xxxxx 000
Xxxxxxxx, XX 00000 33,315 shares of Junior
Fax No.: (000) 000-0000 Preferred Stock
Exeter Equity 310,291 shares of
Partners, L.P. Class B Common Stock
Exeter Venture
Lenders, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxx
Fax No.: (000) 000-0000
Xxxx Xxxxxxx Mutual 100,000 shares of Senior
Life Insurance Company Preferred Stock
000 Xxxxxxxxx Xxxxxx
57th Floor 414,079 shares of
P. O. Xxx 000 Xxxxxx X
Xxxxxx, XX 00000 Common Stock
Attn: Bond and
Corporate Finance
Fax No.: (000) 000-0000
Copy to: 0000 Xxxxx Xxxx Xxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Office Manager
19
Fax No.: (000) 000-0000
Name of Stockholder Capital Stock
--------------------------------- --------------------------
Massachusetts Mutual Life 43,823 shares of Junior
Insurance Company Preferred Stock
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxx
Fax No.: (000) 000-0000
Massachusetts Participation 5,056 shares of Junior
Investors Preferred Stock
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx
Fax No.: (000) 000-0000
Massachusetts Corporate 10,113 shares of Junior
Investors Preferred Stock
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxx
Fax No.: (000) 000-0000
BankAmerica Investment 52,621 shares of Junior
Corporation Preferred Stock
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Fax No.: (000) 000-0000
Ms. Xxxxx Board 33,177 shares of Junior
c/o Xxxxxxx X. X'Xxxxx Preferred Stock
Xxxxxxx X. X'Xxxxx 33,315 shares of Junior
Preferred Stock
20
GOLDEN STATE ACQUISITION CORP.
SUPPLEMENTAL SIGNATURE PAGE
TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SUBSEQUENT CLOSING -- NOVEMBER 26, 1996
By their execution hereof, GOLDEN STATE ACQUISITION CORP., a
Delaware corporation (the "Company"), and each of the undersigned (each, a
"Stockholder" and collectively, the "Stockholders"), hereby become parties to
the Amended and Restated Stockholders Agreement dated as of October 10, 1996
(the "Stockholders Agreement") by and among the Company, and the parties set
forth on the signature page thereof. As of the date hereof, the Company and the
Stockholders each acknowledge and agree to the provisions, terms and conditions
of the Stockholders Agreement with respect to the shares of the Company's
Class K Common Stock set forth opposite each Stockholder's name on Exhibit B
hereto.
IN WITNESS WHEREOF, this Supplemental Signature Page has been
executed and delivered as of the date forth set forth above.
GOLDEN STATE ACQUISITION CORP.
By:
-------------------------------------
Xxxxxxx X. X'Xxxxx
President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
STOCKHOLDERS: R&M PARTNERS/GSV, G.P.
By:
-------------------------------------
Xxxxxxx X. XxXxxxxx
General Partner
Address: Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-------------------------------------------
Xxxxxx Xxxxxxxx
Address: The Xxxxxxxx Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-------------------------------------------
Xxxxx Xxxxxx
Address: Xxxxxx Consulting Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2
EXHIBIT B
SCHEDULE OF SUBSEQUENT STOCKHOLDERS
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Number of Shares of
Stockholder Class K Common Stock
----------- --------------------
------------------------------------------------------------------------------
R&M Partners/GSV, G.P. 20,661
------------------------------------------------------------------------------
Xxxxx Xxxxxx 6,887
------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 6,887
------------------------------------------------------------------------------
TOTAL 34,435
------------------------------------------------------------------------------
------------------------------------------------------------------------------
3
