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EXHIBIT 10.5
EXECUTION COPY
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT is made as of November 30, 1999, by and among
X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation (the "Company"),
Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P., a Delaware limited partnership
("BRS"), each of the Persons (as defined herein) executing the BRS Investor
Signature Page attached hereto (each, a "BRS Investor" and collectively, the
"BRS Investors"), each of the individuals executing an Executive Signature Page
attached hereto (collectively, the "Executives" and individually an "Executive")
and each of the warrant holders executing a Warrant Holder Signature Page
attached hereto and such other Persons acquiring a Warrant after the date hereof
(collectively, the "Warrant Holders" and individually, a "Warrant Holder"). BRS,
the BRS Investors, the Executives, the Warrant Holders and each other Person
acquiring Common Stock (as defined below) from the Company after the date hereof
and executing a joinder hereto in the form attached as Exhibit A hereto and the
respective Permitted Transferees (as defined in Section 4(c)) of all of the
foregoing Persons are collectively referred to herein as the "Stockholders", and
each as a "Stockholder". Unless otherwise indicated herein, capitalized terms
used herein are defined in Section 1 hereof.
WHEREAS, BRS and the BRS Investors have acquired certain shares of Common
Stock pursuant to the Merger Agreement;
WHEREAS, each of the Executives has acquired beneficial ownership of
certain shares of Common Stock pursuant to the Merger Agreement;
WHEREAS, in connection with the transactions described in the preceding
paragraph, the Company, BRS and the Executives have entered into a Management
Stock Agreement dated as of the date hereof by (as amended, restated or modified
from time to time, the "Management Stock Agreement");
WHEREAS, each Warrant Holder has acquired or will acquire certain warrants
to acquire certain shares of Common Stock; and
WHEREAS, the Company and the Stockholders desire to enter into this
Agreement for the purposes, among others, of (i) establishing the composition of
the Board, (ii) assuring continuity in the management and ownership of the
Company and (iii) limiting the manner and terms by which the Stockholder Shares
may be transferred.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
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1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" shall mean, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled by,
such Person. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Approved Sale" means the sale of the Company, in a single transaction or a
series of related transactions, to an Unaffiliated Third Party (a) pursuant to
which such Unaffiliated Third Party proposes to acquire all of the outstanding
Common Stock (whether by merger, consolidation, recapitalization,
reorganization, purchase of the outstanding Common Stock or otherwise) or all or
substantially all of the consolidated assets of the Company, (b) which has been
approved by the Board and holders of a majority of the BRS Shares (the
"Approving Stockholders"), (c) pursuant to which all holders of Stockholder
Shares receive (whether in such transaction or, with respect to an asset sale,
upon a subsequent liquidation) the same form and amount of consideration per
share of Common Stock (as adjusted for any consideration payable by such holders
in connection with the exercise of any securities convertible and/or
exchangeable into Common Stock) as each other holder of Stockholder Shares, or
if any holders of Stockholder Shares are given an option as to the form and
amount of consideration received, all such holders of Stockholder Shares are
given the same option (provided, that any amounts paid or under bona fide
employment agreements, consulting agreements, management agreements or other
similar agreements for actual services to be rendered shall not be counted as
consideration for purposes of this clause (c)), and (d) which has been
designated by the Approving Stockholders as an "Approved Sale."
"Board" means the Company's board of directors.
"BRS Closing Date Shares" means Stockholder Shares held by BRS as of the
date hereof.
"BRS Shares" means Stockholder Shares owned by BRS and the BRS Investors,
or any of their respective Permitted Transferees.
"Co-Invest Shares" in the case of any Executive, means such Executive's
"Co-Invest Shares" as defined in the Management Stock Agreement.
"Common Stock" means the Company's Common Stock, par value $0.01 per share,
as adjusted for any stock split, stock dividend or other combination, exchange,
conversion, recapitalization, merger, consolidation or reorganization, or, if
the shares of Common Stock are hereafter changed or exchanged for different
shares, interests or securities of the Company, such other shares, interests or
securities, and any other Common Stock of the Company hereafter issued.
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"Executive Shares" means Stockholder Shares owned by the Executives or any
of their Permitted Transferees.
"Family Group" means, with respect to an individual Stockholder, such
Stockholder's spouse and descendants (whether natural or adopted) and any trust
or other entity solely for the benefit of such Stockholder and/or such
Stockholder's spouse, their respective ancestors and/or descendants (whether
natural or adopted).
"Initial Public Offering" means the sale, in the initial underwritten
public offering registered under the Securities Act, of shares of the Company's
Common Stock where, after such offering, the Common Stock sold in such offering
is subject to being traded in the NASDAQ National Market or a national
securities exchange.
"Management Stock Agreement" means the Management Stock Agreement dated on
even date herewith among the Company and certain of its Stockholders.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
May 17, 1999, between the Company and OSI Acquisition, Inc., a Delaware
corporation, as amended, restated or modified from time to time.
"Other Stockholders" means, with respect to a Stockholder, all Stockholders
other than such Stockholder.
"Permitted Transferees" has the meaning set forth in Section 4(c).
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Public Sale" means any sale of Stockholder Shares to the public pursuant
to an offering registered under the Securities Act or to the public effected
through a broker, dealer or market maker pursuant to the provisions of Rule 144
under the Securities Act.
"Qualified Public Offering" means the sale, in an underwriting primary
public offering of Common Stock registered under the Securities Act, of shares
of Common Stock which is expected to result in net cash proceeds to the Company
in an aggregate amount of not less than $30 million.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Stockholder Shares" means (i) any Common Stock now held or hereafter
acquired by the Stockholders, (ii) any Common Stock issued or issuable upon
exercise of any securities convertible and/or exchangeable for Common Stock, and
(iii) any equity securities issued or issuable directly or indirectly with
respect to the securities referred to in clauses (i) and (ii) above by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger,
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consolidation or other reorganization. As to any particular shares constituting
Stockholder Shares, such shares will cease to be Stockholder Shares when they
have been sold or acquired in a Public Sale or in an Approved Sale or upon the
consummation of a Qualified Public Offering. For purposes of this Agreement, a
Person will be deemed to be a holder of Stockholder Shares whenever such Person
has the right to acquire directly or indirectly such Stockholder Shares (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation or limited liability company (with voting securities), a
majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, limited liability
company (without voting securities), association or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by any Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in a
partnership, limited liability company, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, limited
liability company, association or other business entity gains or losses or shall
be or control the managing director or general partner of such partnership,
limited liability company, association or other business entity.
"Transaction Documents" means (i) this Agreement, (ii) the Merger
Agreement, (iii) the Registration Rights Agreement dated as of the date hereof
by and among the parties hereto, (iv) the Management Stock Subscription
Agreement, (v) the Management Stock Agreement, and (vi) the Warrant Agreements
dated as of the date hereof between the Company and each of Xxxxxx Brothers Inc.
and Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P.
"Transfer" has the meaning set forth in Section 4(a).
"Unaffiliated Third Party" means any Person who, immediately prior to the
contemplated transaction, (i) is not a Person who owns in excess of 5% of the
Common Stock on a fully diluted basis (a "5% Owner"), (ii) is not an Affiliate
of any such 5% Owner and (iii) is not the spouse or descendent (by birth or
adoption) of any such 5% Owner or a trust for the benefit of such 5% Owner
and/or such other Persons.
"Warrant Shares" means Stockholder Shares owned by the Warrant Holders, or
any of their Permitted Transferees.
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2. Board of Directors.
(a) Until the provisions of this Section 2 cease to be effective, to the
extent permitted by law, each Stockholder shall vote all voting securities of
the Company over which such Stockholder has voting control, and shall take all
other necessary or desirable lawful actions within such Stockholder's control
(whether in such Stockholder's capacity as a stockholder, director, member of a
board committee or officer of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company and its Subsidiaries shall take all necessary and desirable actions
within their control (including, without limitation, calling special board and
stockholder meetings), so that:
(i) the authorized number of directors of the Board shall be
established and maintained at seven (7) and will be designated as follows:
(A) five (5) directors shall be designated by the holders of a majority of
the BRS Shares (the "BRS Directors") who shall initially include Xxxxxxx
Xxxxxxx and Xxxxxx X. Xxxxxx;(B) Xxxxxxx X. Xxxxxxxx shall be a director of
the Company for so long as he is the duly elected and acting Chief
Executive Officer of the Company, and thereafter such directorship shall be
held by the duly elected Chief Executive Officer of the Company, and (C)
one (1) director shall be designated by the Chief Executive Officer of the
Company and subject to the approval of the remainder of the Board who shall
initially be Xxxxxx X. X'Xxxxxxxx.
(ii) the composition of the board of directors (or similar bodies) of
each of the Company's Subsidiaries (a "Sub Board") shall be the same as
that of the Board;
(iii) any committees of the Board or a Sub Board shall be created only
upon the approval of a majority of the voting power of the Board and the
composition of each such committee (if any) shall consist of not more than
three Persons, at least one of which will be a BRS Director;
(iv) any director shall be removed from the Board, a Sub Board or any
committee thereof (with or without cause) at the written request of the
Stockholder or Stockholders which have the right to designate such director
hereunder, but only upon such written request and under no other
circumstances; provided, that the holders of Stockholder Shares may remove
any director for cause, but the replacement director may only be designated
by the Stockholders which have the right to designate such director
hereunder; and
(v) in the event that any representative designated hereunder for any
reason ceases to serve as a member of the Board or a Sub Board or any
committee thereof during such representative's term of office, the
resulting vacancy on the Board or such Sub Board or committee shall be
filled by a representative designated by the Stockholders referred to in
clause (i).
(b) The Company shall pay the reasonable out-of-pocket expenses incurred by
each director in connection with attending the meetings of the Board or any Sub
Board and any
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committee thereof. In addition, the Company shall pay such additional
compensation to directors who are not employees of the Company or any of its
Subsidiaries as the Board so determines.
(c) If any party fails to designate a representative to fill a directorship
pursuant to the terms of this Section 2, the election of a Person to such
directorship shall be accomplished in accordance with the Company's bylaws and
applicable law (provided that such party may subsequently remove and replace
such Person). In the event that any provision of the Company's bylaws or
articles of incorporation is inconsistent with any provision of this Section 2,
the Stockholders shall take such action as may be necessary to amend any such
provision in the Company's bylaws or certificate of incorporation to remedy such
inconsistency.
(d) The provisions of this Section 2 shall terminate automatically and be
of no further force and effect upon the consummation of a Qualified Public
Offering.
3. Representations and Warranties. (a) Each Stockholder represents and
warrants that (i) this Agreement has been duly authorized, executed and
delivered by such Stockholder and constitutes the valid and binding obligation
of such Stockholder, enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors rights generally or by general equitable principles, and
(ii) 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. No holder of Stockholder Shares shall grant any
such proxy or become party to any such voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
(b) The Company represents and warrants that (i) it is a corporation duly
organized and validly existing under the laws of the State of Delaware and is
qualified to do business in every jurisdiction in which its ownership of
property or conduct of business requires it to qualify, except for such
jurisdictions in which the failure to so qualify, would not have a material
adverse effect on the Company, (ii) the execution, delivery and performance of
this Agreement have been duly authorized by the Company, and (iii) this
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms, except to the extent that the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general principles of
equity.
4. Restrictions on Transfer of Stockholder Shares.
(a) Tag Along Rights. Subject to Sections 4(c) and 4(d), at least 15 days
prior to any sale, transfer, assignment, pledge or other disposal (a "Transfer")
of Stockholder Shares by BRS of more than 10% of the total number of BRS Closing
Date Shares (or any lesser number of Stockholder Shares which together with all
Stockholder Shares previously Transferred by BRS equal an amount in excess of
10% of the BRS Closing Date Shares), BRS shall deliver a written notice (the
"Sale Notice") to the Company and to each of the Other Stockholders, specifying
in reasonable detail the identity of the prospective transferee(s) and the terms
and conditions of the Transfer; provided, that this Section 4(a) shall not apply
to any Transfer made pursuant to an Approved Sale
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or a Public Sale. Each Stockholder may elect to participate in the contemplated
Transfer by delivering written notice to BRS within 15 days after receipt of the
Sale Notice. If any of the Stockholders have elected to participate in such
Transfer, each of BRS and such Other Stockholders shall be entitled to sell in
the contemplated Transfer, at the same price and on the same terms, a number of
Stockholder Shares of any class equal to the product of (i) the quotient
determined by dividing the number of Stockholder Shares owned by such
Stockholder by the aggregate number of Stockholder Shares owned by the
Stockholders participating in such Transfer and (ii) the aggregate number of
Stockholder Shares to be sold in the contemplated Transfer. Each Stockholder
transferring Stockholder Shares pursuant to this Section 4(a) shall pay its pro
rata share (based on the number of Stockholder Shares to be sold) of the
expenses incurred by the Stockholders in connection with such Transfer and shall
be obligated to join in any indemnification obligations that BRS agrees to
provide in connection with such Transfer on a pro rata basis in accordance with
the number of Stockholder Shares sold in such Transfer; provided, that each
Stockholder's indemnification obligations shall not exceed the aggregate amount
of proceeds received by such Stockholder in such Transfer; and provided further,
that the representations and warranties and indemnification obligations of
holders of Warrant Shares shall be limited to representations regarding title to
such Stockholder Shares.
(b) First Offer Rights. Subject to Sections 4(c) and 4(d), at least 30 days
prior to any Transfer of Stockholder Shares (other than BRS Shares and other
than Warrant Shares), such Person making such Transfer (the "Offering
Stockholder") shall deliver a written notice (the "Transfer Notice") to the
Company and BRS specifying in reasonable detail the number of Stockholder Shares
proposed to be transferred, the proposed purchase price (which shall be payable
solely in cash) and the other terms and conditions of the Transfer; provided,
that this Section 4(b) shall not apply to any Transfer made following an
Approved Sale or the exercise of a "Repurchase Option" (as defined and set forth
in the Management Stock Agreement). BRS (or its designees) may elect to purchase
all (but not less than all) of the Stockholder Shares to be transferred, upon
the same terms and conditions as those set forth in the Transfer Notice, by
delivering a written notice of such election to the Offering Stockholder and the
Company within 10 days after the Transfer Notice has been delivered to the
Company. If BRS (or its designees) does not elect to purchase all of the
Stockholder Shares specified in the Transfer Notice, then the Company may elect
to purchase all or any portion of the remaining Stockholder Shares to be
transferred, upon the same terms and conditions set forth in the Transfer
Notice, by delivering a written notice of such election to the Offering
Stockholder within 20 days after the Transfer Notice has been delivered to the
Company. If BRS (or its designees) and the Company do not elect to purchase the
Stockholder Shares specified in the Transfer Notice, then the Offering
Stockholder may transfer the Stockholder Shares specified in the Transfer Notice
at a price and on terms no more favorable to the transferee(s) thereof than
specified in the Transfer Notice during the 90-day period immediately following
the earlier of (i) 20 days after delivery of the Transfer Notice and (ii) the
date as of which both BRS and the Company have declined in writing to exercise
their options under this Section 4(b). Any Stockholder Shares not transferred
within such 90-day period will be subject to the provisions of this Section 4(b)
upon subsequent Transfer.
(c) Permitted Transfers. The restrictions contained in this Section 4 shall
not apply with respect to any Transfer of Stockholder Shares by any Stockholder
(i) in the case of an
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individual Stockholder, (1) pursuant to applicable laws of descent and
distribution or among such Stockholder's Family Group, (2) with respect to
shares held by Xxxxxxx X. Xxxxxxxx, to Xxxx Xxxxxxxx, Xxxxxxx X. Xxxxx and
Xxxxxxx X. Xxxxxx, in each case, so long as such individuals are employees of
the Company and its Subsidiaries, (3) with respect to Co-Invest Shares held by
any Executive, so long as such Executive has good and valid reason to transfer
such Co-Invest Shares, to any other Executive upon receipt of the prior written
consent of the Board, which consent shall not be unreasonably withheld, or (ii)
in the case of a holder of the BRS Shares and its Permitted Transferees, (A)
among its Affiliates and partners, (B) to any employee, prospective employee,
director or prospective director of the Company or any Subsidiary of the Company
as incentive compensation, (C) to any BRS Investor or any employee or director
(whether current, former or prospective) of BRS or any Affiliate of BRS or (D)
to BRS; provided, in each case contemplated by this clause (ii), that the rights
and restrictions contained in this Section 4 shall continue to be applicable to
such Stockholder Shares after any such Transfer as if such Stockholder Shares
were held by the transferor; and provided further, that (x) the transferees of
such Stockholder Shares shall have agreed in writing to be bound by the
provisions of this Agreement which affect the Stockholder Shares so transferred
by executing a joinder in substantially the form attached hereto as Exhibit A
and (y) with respect to any transferee of Executive Shares, a joinder to the
applicable Management Stock Agreement. All transferees permitted under this
Section 4(c) are collectively referred to herein as "Permitted Transferees."
(d) Termination of Restrictions. The restrictions set forth in this Section
4 shall continue with respect to each Stockholder Share until the consummation
of an Initial Public Offering.
5. Sale of the Company.
(a) In the event of an Approved Sale, each Stockholder will thereafter (i)
consent to and raise no objections against the Approved Sale or the process
pursuant to which the Approved Sale was arranged, (ii) waive any dissenter's
rights and other similar rights, and (iii) if the Approved Sale is structured as
a sale of securities, each Stockholder will agree to sell its Stockholder Shares
on the terms and conditions of the Approved Sale. Each Stockholder will take all
necessary and desirable actions as directed by the Board in connection with the
consummation of any Approved Sale, including, without limitation, executing the
applicable purchase agreements and joining in any indemnification obligations
(whether directly to the buyer in such Approved Sale or pursuant to a
contribution arrangement) on a pro rata basis in accordance with the number of
Stockholder Shares sold in such Approved Sale; provided, that each Stockholder's
indemnification obligation shall not exceed the aggregate amount of proceeds
received by such Stockholder in such Approved Sale.
(b) If the Company or the holders of the Company's securities enter into
any negotiation or transaction for which Rule 506 (or any similar rule then in
effect) under the Securities Act may be available with respect to such
negotiation or transaction (including a merger, consolidation or other
reorganization), the Stockholders will, at the request of the Company, appoint a
purchaser representative (as such term is defined in Rule 501) reasonably
acceptable to the Company. If any Stockholder appoints a purchaser
representative designated by the Company, the Company will pay the fees of such
purchaser representative, but if any Stockholder declines to
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appoint the purchaser representative designated by the Company such holder will
appoint another purchaser representative (reasonably acceptable to the Company),
and such holder will be responsible for the fees of the purchaser representative
so appointed.
(c) All Stockholders (other than holders of Warrant Shares) will bear their
pro rata share (based upon the number of Stockholder Shares sold) of the
reasonable costs of any sale of Stockholder Shares pursuant to an Approved Sale
to the extent such costs are incurred for the benefit of all selling
Stockholders and are not otherwise paid by the Company or the acquiring party.
Costs incurred by any Stockholder on its own behalf will not be considered costs
of the transaction hereunder.
(d) This Section 5 shall automatically terminate upon the consummation of
an Initial Public Offering.
6. Legend. Each certificate or instrument evidencing Stockholder Shares and
each certificate or instrument issued in exchange for or upon the Transfer of
any Stockholder Shares (if such shares remain Stockholder Shares, each as
defined herein after such Transfer) shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON ___________, ____, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO A STOCKHOLDERS AGREEMENT
DATED AS OF NOVEMBER 30, 1999, BY AND AMONG THE ISSUER OF SUCH
SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S STOCKHOLDERS.
A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE
BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
The Company shall imprint such legend on certificates and instruments evidencing
Stockholder Shares outstanding prior to the date hereof. The legend set forth
above shall be removed from the certificates and instruments evidencing any
units which cease to be Stockholder Shares.
7. Transfer of Stockholder Shares.
(a) Stockholder Shares are transferable only pursuant to (i) public
offerings registered under the Securities Act, (ii) subject to the provisions of
Section 4 above, Rule 144 or Rule 144A or Regulation S (or any similar rules
then in effect) of the Securities and Exchange Commission if such rule is
available, and (iii) subject to Section 4 or 5 and Section 7(b) below, any other
legally available means of Transfer.
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(b) In connection with the Transfer of any Stockholder Shares other than a
Transfer described in clause (i) or (ii) of Section 7(a) above, the holder
thereof shall deliver written notice to the Company describing in reasonable
detail the Transfer or proposed Transfer, together with an opinion of counsel
reasonably acceptable to the Company (which such opinion requirement may be
waived by the Company in its sole discretion) to the effect that such Transfer
of Stockholder Shares may be effected without registration of such Stockholder
Shares under the Securities Act. In addition, if the holder of the Stockholder
Shares delivers to the Company an opinion of counsel that no subsequent Transfer
of such Stockholder Shares shall require registration under the Securities Act
and that such Stockholder Shares are no longer subject to the restrictions
herein, the Company shall, if such Stockholder Shares are certificated, promptly
upon such contemplated Transfer deliver new certificates for such Stockholder
Shares which do not bear the legend set forth in Section 6 above. If the Company
is not required pursuant to the immediately preceding sentence to deliver new
certificates for such Stockholder Shares without such legend, the holder thereof
shall not consummate a Transfer of the same until the prospective transferee has
confirmed to the Company in writing its agreement to be bound by the conditions
contained in this Section 7 and Section 6 above.
(c) Upon the request of a holder of Stockholder Shares, the Company shall
promptly supply to such Person or its prospective transferees all information
regarding the Company required to be delivered in connection with a Transfer
pursuant to Rule 144A (or any similar rule or rules then in effect) of the
Securities and Exchange Commission.
(d) Upon the request of any holder of Stockholder Shares, the Company shall
remove the legend set forth in Section 6 above from the certificates for such
holder's Stockholder Shares (or the eligible portion thereof); provided, that
such Stockholder Shares have been either registered under the Securities Act or
are eligible for sale pursuant to Rule 144 (or any similar rule or rules then in
effect) of the Securities and Exchange Commission.
(e) Any Transfer or attempted Transfer of any Stockholder Shares in
violation of any provision of this Agreement shall be null and void, and the
Company shall not record such Transfer on its books or treat any purported
transferee of such Stockholder Shares as the owner of such shares for any
purpose.
8. Amendment and Waiver. Except as otherwise provided herein, (a) 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, respectively, the Company or the
holders of a majority of the Stockholder Shares on a fully diluted basis, and
(b) no modification, amendment or waiver which materially adversely affects the
rights of a Stockholder under this Agreement vis-a-vis Other Stockholders shall
be effective against such Stockholder unless such modification, amendment or
waiver is approved in writing by such Stockholder. For avoidance of doubt, an
amendment to add another party to this Agreement is not an action which, in and
of itself, affects any Stockholder materially adversely. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
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.
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9. 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
any other provision or 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.
10. Entire Agreement. Except as otherwise expressly set forth herein, this
document and the other Transaction Documents embody the complete agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersede and preempt 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.
11. 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 Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
12. Counterparts. This Agreement may be executed in separate counterparts
each of which shall be an original and all of which taken together shall
constitute one and the same agreement.
13. Remedies. The parties hereto 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. The parties hereto agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and
that the Company and each of the Stockholders may in his, hers, or its sole
discretion apply to any 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.
14. WAIVER OF JURY TRIAL. THE COMPANY AND EACH STOCKHOLDER HEREBY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY
COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR
THE VALIDITY, PROTECTION, INTERPRETATION OR ENFORCEMENT THEREOF. THE COMPANY AND
EACH STOCKHOLDER AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF
THIS AGREEMENT AND WOULD NOT ENTER INTO THIS AGREEMENT IF THIS SECTION WERE NOT
PART OF THIS AGREEMENT.
15. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent
- 11 -
12
via facsimile to the recipient accompanied by a certified or registered mailing.
Such notices, demands and other communications will be sent to the address
indicated below:
To the Company, to:
X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President and Secretary
Facsimile: (000) 000-0000 (President
(000) 000-0000 (Secretary)
With a copy, which shall not constitute notice to the
Company, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To BRS, to:
Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice to
BRS, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To any of the Executives, to:
[EXECUTIVE]
c/o X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
- 12 -
13
With a copy, which shall not constitute notice to
such Executive, to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
To any Warrant Holder, to:
To the address for such Warrant Holder set forth in
the Company's records;
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
16. GOVERNING LAW. THE CORPORATE LAW OF DELAWARE SHALL GOVERN ALL ISSUES
CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
17. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
* * * * *
- 13 -
14
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of the date first above written.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: President and Chief Operating Officer
BRUCKMANN, XXXXXX, XXXXXXXX & CO. II,
L.P.
By: BRSE, L.L.C.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Its:
15
BRS INVESTOR SIGNATURE PAGE
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
XXXXXX XXXXXXXX
/s/ Rice Xxxxxxx
----------------------------------------
RICE XXXXXXX
/s/ Xxxxxx Xxxxx
----------------------------------------
XXXXXX XXXXX
/s/ Xxxxx Xxxxxx
----------------------------------------
XXXXX XXXXXX
/s/ Xxxxx Xxxxxxxxx
----------------------------------------
XXXXX XXXXXXXXX
/s/ Xxxxxx Xxxxxxx
----------------------------------------
XXXXXX XXXXXXX
/s/ Xxxxxxxx Xxxxxx
----------------------------------------
XXXXXXXX XXXXXX
16
EXECUTIVE SIGNATURE PAGE (PAGE 1 OF 4)
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
XXXXXXX X. XXXXXXXX XXXXX X. XXXXXXX
/s/ Xxxxxxx X. X'Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
XXXXXXX X. X'XXXXXXXX XXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx Xxxxxxxxxxx
--------------------------------- ---------------------------------
XXXXXXX X. XXXXX XXXX X. XXXXXXXXXXX
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxxxxxx
--------------------------------- ---------------------------------
XXXXXX X. XXXXXX XXXXX XXXXXXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx, Xx. /s/ Xxx X. Xxxxxx
--------------------------------- ---------------------------------
XXXXXX X. X'XXXXXXXX, XX. XXX X. XXXXXX
/s/ Xxxxx X. Xxxxxxx /s/ Xxxx X. Xxx
--------------------------------- ---------------------------------
XXXXX X. XXXXXXX XXXX X. XXX
/s/ Xxxxxxx X. Xxxxxx, III /s/ Xxxxx X. Edge
--------------------------------- ---------------------------------
XXXXXXX X. XXXXXX, III XXXXX X. EDGE
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
XXXXXX X. XXXXXXX XXXXXXX X. XXXXXXX
/s/ E. Xxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxx
--------------------------------- ---------------------------------
E. XXXXXX XXXXXX XXXXXXX X. XXXX
/s/ Xxxxx X. Xxxxxxx /s/ Xxx Xxxxxxx
--------------------------------- ---------------------------------
XXXXX X. XXXXXXX XXX XXXXXXX
/s/ Xxxxx Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxx
--------------------------------- ---------------------------------
XXXXX XXXXXX, XX. XXXXXXX X. XXXXXX
EXECUTIVE SIGNATURE PAGE (PAGE 2 OF 4)
17
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
XXXXX X. XXXXXX XXXXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxx
--------------------------------- ---------------------------------
XXXX X. XXXXXXX XXXXXXX X. XXXX
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxx
--------------------------------- ---------------------------------
XXXX X. XXXXXXXXX XXXXX X. XXXXXX
/s/ Xxxxxx X. X'Xxxxxxxx /s/ Xxxxxx X. X'Xxxxxxxx
--------------------------------- ---------------------------------
XXXXXX X. X'XXXXXXXX XXXXXX X. X'XXXXXXXX
X'XXXXXXXX PROPERTIES, INC.
/s/ Xxxxxxx Day By: /s/ Xxxxxx X. X'Xxxxxxxx, Xx.
--------------------------------- ---------------------------------
XXXXXXX DAY Name: Xxxxxx X. X'Xxxxxxxx, Xx.
Title: President
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxxx
--------------------------------- ---------------------------------
XXXXXXX X. XXXXXX XXXX XXXXXXXX
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxxx X'Xxxxxxxx
--------------------------------- ---------------------------------
XXXXXX X. XXXXXX XXXXXXXX X'XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. X'Xxxxxxxx
--------------------------------- ---------------------------------
XXXXXX X. XXXXXXXXX XXXXXXX X. X'XXXXXXXX, as
custodian for Xxxx X'Xxxxxxxx
18
EXECUTIVE SIGNATURE PAGE (PAGE 3 OF 4)
/s/ Xxxxxxx X. X'Xxxxxxxx /s/ Xxx X'Xxxxxxxx
--------------------------------- ---------------------------------
XXXXXXX X. X'XXXXXXXX, as custodian XXX X'XXXXXXXX
for Xxxxxx X'Xxxxxxxx
/s/ Xxxxxxx X. X'Xxxxxxxx /s/ Xxxxxxxx X'Xxxxxxxx Day
--------------------------------- ---------------------------------
XXXXXXX X. X'XXXXXXXX, as custodian for XXXXXXXX X'XXXXXXXX DAY
Xxxxxx X'Xxxxxxxx
/s/ Xxxx Xxxxx /s/ Xxxxx Xxxxxx
--------------------------------- ---------------------------------
XXXX XXXXX XXXXX XXXXXX
/s/ Xxxxx X'Xxxxxxxx /s/ Xxxxxx X. Xxxx
--------------------------------- ---------------------------------
XXXXX X'XXXXXXXX XXXXXX X. XXXX
XXXXX X'XXXXXXXX XXXXXXX
REVOCABLE LIVING TRUST
/s/ Xxxxx X. X'Xxxxxxxx By: /s/ Xxxxx X'Xxxxxxxx Xxxxxxx
--------------------------------- ---------------------------------
XXXXX X. X'XXXXXXXX Xxxxx X'Xxxxxxxx Xxxxxxx,
Trustee
/s/ Xxxxxx X. X'Xxxxxxxx, Xx. /s/ Xxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
XXXXXX X. X'XXXXXXXX, XX. as XXXXX X. XXXXXXX, custodian for
custodian for Xxxxx X'Xxxxxxxx Xxxxx X. Xxxxxxx
BATO, L.P.
By: /s/ Xxxxxx X. X'Xxxxxxxx, Xx. /s/ Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
Xxxxxx X. X'Xxxxxxxx, Xx., XXXXX XXXXXXX, custodian for
General Partner Xxxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxx
--------------------------------- ---------------------------------
XXXXX X. XXXXXXX XXXXX X. XXXXXX
19
EXECUTIVE SIGNATURE PAGE (PAGE 4 OF 4)
/s/ Xxxxx X'Xxxxxxxx Xxxxxxx /s/ Xxxxxx Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
XXXXX X'XXXXXXXX XXXXXXX XXXXXX XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx Xxxx /s/ Xxxxx X'Xxxxxxxx
--------------------------------- ---------------------------------
XXXXX XXXXXXX XXXX XXXXX X'XXXXXXXX
/s/ Xxxxxxx Xxxxxxx
---------------------------------
XXXXXXX XXXXXXX
20
WARRANT HOLDER SIGNATURE PAGE
XXXXXX BROTHERS INC.
By: /s/
----------------------------
Name:
Title:
