EXHIBIT 10.13
XXXXXX HOLDINGS, INC.
STOCKHOLDERS AGREEMENT
Dated as of August 15, 2001,
As amended
XXXXXX HOLDINGS, INC.
STOCKHOLDERS AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I.........................................................................................................3
DEFINITIONS......................................................................................................3
1.1. Certain Matters of Construction..........................................................................3
1.2. Definitions..............................................................................................4
ARTICLE II.......................................................................................................12
COVENANTS AND CONDITIONS........................................................................................12
2.1. Restrictions on Transfers; Involuntary Transfers........................................................12
2.2. Call by the Company of Management Stockholders' Equity Interests........................................14
2.3. Take Along..............................................................................................16
2.4. Come Along..............................................................................................18
2.5. Corporate Governance....................................................................................20
2.6. Rights of Participation.................................................................................21
2.7. Confidentiality.........................................................................................23
ARTICLE III......................................................................................................23
REGISTRATION RIGHTS.............................................................................................23
3.1. General.................................................................................................23
3.2. Demand Registration Initiated by the Berkshire Stockholders.............................................23
3.3. Piggyback Registration; Reduction in Registration.......................................................24
3.4. Obligations of the Company..............................................................................25
3.5. Furnish Information.....................................................................................27
3.6. Expenses of Registration................................................................................27
3.7. Underwriting Requirements...............................................................................27
3.8. Indemnification.........................................................................................28
3.9. Registration on Form S-3................................................................................30
3.10. Reports Under Securities Exchange Act of 1934...........................................................30
3.11. No Inconsistent Agreements..............................................................................31
3.12. Stock Split.............................................................................................31
3.13. Timing and Other Limitations............................................................................31
3.14. Lock-up.................................................................................................31
ARTICLE IV.......................................................................................................32
MISCELLANEOUS...................................................................................................32
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4.1. Appointment of the Management Proxy.....................................................................32
4.2. Remedies................................................................................................32
4.3. Entire Agreement; Amendment; Waiver.....................................................................32
4.4. Severability............................................................................................33
4.5. Notices.................................................................................................33
4.6. Binding Effect; Assignment..............................................................................34
4.7. Governing Law...........................................................................................34
4.8. Termination.............................................................................................34
4.9. Recapitalizations, Exchanges, Etc.......................................................................35
4.10. Action Necessary to Effectuate the Agreement............................................................35
4.11. Purchase for Investment; Legend on Certificate..........................................................35
4.12. Effectiveness of Transfers..............................................................................36
4.13. Other Stockholders......................................................................................36
4.14. No Waiver...............................................................................................36
4.15. Costs and Expenses......................................................................................36
4.16. Counterpart.............................................................................................36
4.17. Headings................................................................................................36
4.18. Third Party Beneficiaries...............................................................................36
4.19. Consent to Jurisdiction.................................................................................37
4.20. WAIVER OF JURY TRIAL....................................................................................37
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STOCKHOLDERS AGREEMENT
This
Stockholders Agreement (this "Agreement") is entered into as of the
15th day of August, 2001 by and among (i) Xxxxxx Holdings, Inc., a
Massachusetts
corporation (together with its successors and permitted assigns, the "Company")
and (ii) the Stockholders (as defined below) party hereto and has been amended
on each of February 8, 2002 and April 3, 2002.
WHEREAS, upon consummation of the transactions contemplated by that certain
Stock Purchase Agreement dated as of July 12, 2001, as heretofore amended (the
"Stock Purchase Agreement") by and among the Company, the selling stockholders
of the Company and CH Acquisition LLC, a Delaware limited liability company, the
Berkshire Stockholders (as defined below), the Management Stockholders (as
defined below) and the Other Stockholders (as defined below) as of the date of
such consummation will own the number of shares of Common Stock (as defined
below) and options to purchase shares of Common Stock, each as set forth in the
books and records of the Company;
WHEREAS, each of the parties to this Agreement desires that this Agreement
supersedes the Stock Acquisition Agreements (as defined below), the Stock Option
Agreements (as defined below) and the Existing Stock Purchase Agreements (as
defined below), and by execution of this Agreement, such Stock Acquisition
Agreements, Stock Option Agreements (to the extent not restated as of the date
hereof) and Existing Stock Purchase Agreements shall terminate effective as of
the date of this Agreement; and
WHEREAS, each of the Stockholders desires to enter into this Agreement for
the purpose of regulating certain relationships of the Stockholders with regard
to the Company and certain restrictions on the Common Stock and other equity
securities owned by the Stockholders.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1. CERTAIN MATTERS OF CONSTRUCTION. In addition to the definitions
referred to or set forth below in this Section 1:
(a) The words "hereof," "herein," "hereunder" and words of
similar import shall refer to this Agreement as a whole and not to any
particular Section or provision of this Agreement, and reference to a
particular Section of this Agreement shall include all subsections thereof;
(b) References to Sections and Articles refer to Sections and
Articles of this Agreement;
(c) Definitions shall be equally applicable to both nouns and
verbs and the singular and plural forms of the terms defined; and
(d) The masculine, feminine and neuter genders shall each include
the other.
1.2. DEFINITIONS. For the purposes of this Agreement, the following terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended, or any
successor act.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended, or
any successor act.
"Adverse Claim" shall have the meaning set forth in Section 8.102 of the
applicable Uniform Commercial Code.
"Affiliate" shall mean, with respect to any specified Person, any other
Person which, directly or indirectly, through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person (for the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.
"Agreement" shall have the meaning set forth in the first paragraph of this
Agreement.
"Associate" (i) when used to indicate a relationship with any Person shall
mean, (a) any corporation or organization of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten percent (10%)
or more of any class of equity securities, (b) any trust or other estate in
which such Person has a substantial beneficial interest or as to which such
Person serves as a trustee or in a similar fiduciary capacity, and (c) any
relative of such Person who has the same home as such Person, is a parent,
sibling, spouse, in-law, child or grandchild of such Person, or the spouse of
any of them, or (ii) when used to indicate a relationship with the Company,
shall also mean a director or officer of the Company or any Subsidiary. Neither
the Company nor any of its Subsidiaries shall be deemed an Associate of any
Stockholder.
"Berkshire Representatives" shall have the meaning as set forth in Section
2.5(a).
"Berkshire Stockholders" shall mean (i) those Persons listed as the
Berkshire Stockholders on the signature pages hereof, and (ii) their Permitted
Transferees (other than the Company), as evidenced by an executed counterpart to
this Agreement or a joinder to this Agreement, in either case, indicating that
such Permitted Transferee will be a Berkshire Stockholder.
"Board" or "Board of Directors" shall mean the Board of Directors of the
Company as the same shall be constituted from time to time.
"Board Determination Procedures" shall mean the procedures by which the
Board calculates the Board Participation Determination. Such procedures shall
include, but not be limited to, a good faith estimate by the Board of any
acceleration of vesting of any Time Options and/or Performance Options upon
consummation of the proposed Transfer, the Applicable Percentage (as defined in
the Performance Options), the IRR (as defined in the Performance Options),
Adjusted EBITA (as defined in the Performance Options) and the number of Shares
the prospective transferee will ultimately purchase in the proposed Transfer.
"Board Participation Determination" shall mean for each Management
Stockholder a good faith estimate of the number of Time Options which will vest
upon the consummation of the proposed Transfer and the number of Performance
Options which will vest upon consummation of the proposed Transfer, determined
in accordance with the Board Determination Procedures.
"Call Event" shall have the meaning as set forth in Section 2.2(a).
"Call Group" shall have the meaning as set forth in Section 2.2(a).
"Call Notice" shall have the meaning as set forth in Section 2.2(a).
"Call Option" shall have the meaning as set forth in Section 2.2(a).
"Call Price" shall have the meaning as set forth in Section 2.2(b).
"Call Securities" shall mean all of (i) the Shares, (ii) vested Time
Options, (iii) Rollover Options and (iv) vested Performance Options, in each
case which are owned by the members of the Call Group on the date of a Call
Event.
"Cause" shall have the meaning as set forth below, except with respect to
any Management Stockholder who is employed by the Company or one of its
Subsidiaries pursuant to an effective written employment agreement, if any,
between the Company and/or one of its Subsidiaries and such Management
Stockholder in which there is a definition of "Cause," in which event the
definition of "Cause" as set forth in such employment agreement shall be deemed
to be the definition of "Cause" herein solely for such Management Stockholder
and only for so long as such employment agreement remains effective.
In all other events, the term "Cause" shall mean that the Board of
Directors has determined in its reasonable judgement, that any one or more of
the following has occurred:
(i) the Management Stockholder shall have been convicted
of, or shall have pleaded guilty or NOLO CONTENDERE to, any felony
or any crime involving dishonesty or moral turpitude;
(ii) the Management Stockholder shall have committed any
fraud, theft, embezzlement, misappropriation of funds, breach of
fiduciary duty or act of dishonesty;
(iii) the Management Stockholder shall have breached, in
any material respect, any of the provisions of this Agreement or any
other agreement between the Management Stockholder and the Company;
(iv) the Management Stockholder shall have engaged in
conduct likely to make the Company or any of its Affiliates subject
to criminal liabilities other than those arising from the Company's
normal business activities;
(v) the Management Stockholder shall have openly
disregarded his or her responsibilities to the Company and/or its
Affiliates and shall have refused to devote substantial time and
energy to the business and affairs of the Company and/or its
Affiliates (other than due to Disability or temporary disability
which, in the reasonable judgment of the Board of Directors, causes
the Management Stockholder to be incapable of devoting such time and
energy); or
(vi) the Management Stockholder shall have willfully
engaged in any other conduct that involves a breach of fiduciary
obligation on the part of the Management Stockholder or otherwise
could reasonably be expected to have a material adverse effect upon
the business, interests or reputation of the Company or any of its
Affiliates.
"Change in Control" shall mean (i) any transaction or series of related
transactions in which any Person who is not an Affiliate of the Company, or any
two or more such Persons acting as a group, and all Affiliates of such Person or
Persons, who prior to such time owned no Shares or Shares representing less than
fifty percent (50%) of the voting power at elections for the Board, shall (A)
acquire, whether by purchase, exchange, tender offer, merger, consolidation,
recapitalization or otherwise, or (B) otherwise be the owner of (as a result of
a redemption of Shares or otherwise), Shares (or shares in a successor
corporation by merger, consolidation or otherwise) such that following such
transaction or transactions, such Person or group and their respective
Affiliates beneficially own fifty percent (50%) or more of the voting power at
elections for the board of directors of the Company or any successor
corporation, or (ii) the sale or transfer of all or substantially all of the
Company's or The Xxxxxxx Xxxxxx Company's assets and following such sale or
transfer, there is a liquidation of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Come Along Percentage" shall have the meaning set forth in Section 2.4(a).
"Common Stock" shall mean the Company's common stock, par value $.01 per
share, that the Company may be authorized to issue from time to time, any other
securities of the Company into which such Common Stock may hereafter be changed
or for which such Common Stock may be exchanged after giving effect to the terms
of such change or exchange (by way of reorganization, recapitalization, merger,
consolidation or otherwise) and shall also include any common stock of the
Company hereafter authorized and any capital stock of the Company of any other
class hereafter authorized which is not preferred as to dividends or
distribution of assets in liquidation over any other class of capital stock of
the Company and which has ordinary voting power for the election of directors of
the Company.
"Common Stock Equivalents" shall mean all shares of Common Stock (i) owned
by, or (ii) issuable upon exercise of Performance Options (solely to the extent
such Performance Options, on or prior to the time the determination of Common
Stock Equivalents is made, are vested), Time Options (solely to the extent such
Time Options, on or prior to the time the determination of Common Stock
Equivalents is made, are vested) and Rollover Options held by, each Stockholder.
"Company" shall have the meaning set forth in the first paragraph of this
Agreement.
"Company Note" shall have the meaning as set forth in Section 2.2(c).
"Company Option Period" shall have the meaning as set forth in Section
2.1(c)(ii).
"Company Sale" shall mean any transaction or a series of related
transactions through which the holders of Common Stock Equivalents and their
Affiliates immediately prior to the transaction or series of related
transactions shall own less than fifty percent (50%) of all Common Stock
Equivalents (including without limitation, all shares issued in respect of any
such Common Stock Equivalents by way of stock dividend, stock split or
combination of shares) immediately following the transaction or series of
related transactions.
"Default" shall have the meaning as set forth in Section 2.2(c).
"Designated Employee" or "Designated Employees" shall have the meaning as
set forth in Section 2.2(d).
"Disability" shall mean permanent disability within the meaning of Section
22(e)(3) of the Code, unless otherwise defined in a separate written employment
agreement between the Company and/or one of its Subsidiaries and the person
whose disability is in question in which event the definition of "Disability" as
set forth in such employment agreement shall be deemed to be the definition of
"Disability" herein solely for such person and only for so long as such
employment agreement remains effective.
"Existing Stock Purchase Agreements" shall mean the Stock Purchase
Agreements between the Company and each of Xxxxxx Xxxxx (dated April 1, 1997),
Xxxxxx X. Xxxxx (dated January 1, 1998), Xxxxx X. Xxxxxxx (dated June 19, 1997)
and Xxxxx Xxxxxx (dated March 1, 2000).
"Fair Market Value" shall mean the fair value per share of the applicable
Shares as of the applicable date on the basis of a sale of such Shares in an
arms length private sale between a willing buyer and a willing seller, neither
acting under compulsion. In determining such Fair Market Value, no discount
shall be taken for constituting a minority interest or for the illiquidity of
such Shares and no upward adjustment or discount shall be taken relating to the
fact that the Shares in question are subject to the restrictions and entitled to
the rights provided hereunder. Such Fair Market Value shall be determined in
good faith by the Board of Directors.
"Federal Bankruptcy Code" means Title 11 of the United States Code.
"Gross-Up Amount" shall mean the amount, if any, by which the Fair Market
Value per Share or Option is less than the amount the Management Stockholder
would have received in the Change in Control transaction or the Public Offering,
as the case may be, had his or her securities not been called pursuant to
Section 2.2., such amount to be determined in good faith by the Board.
"Holder" or "Holders" have the meaning as set forth in Section 3.1.
"Incentive Plan" shall mean Xxxxxx Holdings, Inc. 2001 Equity Incentive
Plan.
"Investment Price" shall mean an amount per Share equal to the price per
Share paid for such Share at the time of initial purchase thereof (subject to
appropriate adjustments for stock splits, recapitalizations and the like).
"Involuntary Transfer" shall have the meaning as set forth in Section
2.1(c)(vi).
"Management Proxy" shall have the meaning as set forth in Section 4.1.
"Management Representatives" shall have the meaning as set forth in Section
2.5(a).
"Management Stockholders" shall mean (i) those Persons listed as the
Management Stockholders on the signature pages hereof and (ii) their Permitted
Transferees (other than the Company), as evidenced by an executed counterpart to
the Agreement or a joinder to this Agreement, in either case, indicating that
such Permitted Transferee will be a Management Stockholder.
"Mid-term Applicable Federal Rate" shall mean the mid-term applicable
federal rate as defined in Section 1274 of the Code.
"New Securities" shall have the meaning as set forth in Section 2.6(b).
"Options" shall mean Performance Options, Time Options and Rollover
Options.
"Other Stockholders" shall mean (i) those Persons listed as the Other
Stockholders on the signature pages hereof, (ii) their Permitted Transferees
(other than the Company) as evidenced by an executed counterpart to the
Agreement or a joinder to this Agreement, in either case, indicating that such
Permitted Transferee will be an Other Stockholder and (iii) those Persons
described in Section 4.13(iii).
"Participating Offeree" shall have the meaning as set forth in Section
2.4(a).
"Participation Notice" shall have the meaning as set forth in Section
2.4(a).
"Participation Securities" shall have the meaning as set forth in Section
2.4(a).
"Performance Options" shall mean, collectively, the options granted to
certain Management Stockholders under the Incentive Plan to purchase shares of
Common Stock, the
number of vested options of which is subject to the attainment of certain
targets set forth in the Incentive Plan and the option certificates issued
pursuant thereto.
"Permitted Transfer" shall mean:
(i) a Transfer of Shares by any Stockholder who is a
natural person to (a) such Stockholder's spouse, children (including
legally adopted children and stepchildren), spouses of children,
grandchildren, spouses of grandchildren, parents or siblings; (b) a
trust for the benefit of the Stockholder and/or any of the Persons
described in clause (a); or (c) a corporation, limited partnership
or limited liability company whose sole shareholders, partners or
members, as the case may be, are the Stockholder and/or any of the
Persons described in clause (a) or clause (b); PROVIDED, that in any
of clauses (a), (b) or (c), the Stockholder transferring such Shares
retains exclusive power to exercise all rights under this Agreement.
(ii) a Transfer of Shares by any Stockholder to the
Company (including, without limitation, any pledge of Shares or
Options to the Company);
(iii) a Transfer of Shares by a Stockholder upon death or
incapacity to such Stockholder's estate, executors, administrators
and personal representatives, and then to such Stockholder's legal
representatives, heirs or legatees (whether or not such recipients
are a spouse, children, spouses of children, grandchildren, spouses
of grandchildren, parents or siblings of such Stockholder);
PROVIDED, that, in the case of a Management Stockholder whose Shares
were subject to the provisions of Section 2.2 immediately prior to
such Management Stockholder's death, the Company has not exercised
its Call Option with respect to such Shares under Section 2.2;
(iv) a Transfer of Shares (a) by the initial Berkshire
Stockholders to any Affiliate of Berkshire Partners LLC or any of
the employees, partners, members or Affiliates of such Berkshire
Stockholder or any such Affiliate, or (b) between any Berkshire
Stockholders; or
(v) a Transfer of Shares by any Other Stockholder who is
not a natural person to any Affiliate of such Other Stockholder;
PROVIDED, HOWEVER, that Performance Options, Time Options and Rollover Options
may only be transferred in accordance with the terms of the Incentive Plan; and
PROVIDED, FURTHER, that a Permitted Transfer from a Management Stockholder to
any Permitted Transferee must be approved by the Management Proxy; and PROVIDED,
FURTHER, that no Permitted Transfer shall be effective unless and until the
transferee of the Shares, Performance Options, Time Options or Rollover Options
so transferred complies with Section 4.13 including without limitation,
executing and delivering to the Company a counterpart of this Agreement and
agreeing to be bound hereunder in the same manner and to the same extent as the
Stockholder from whom the Shares, Performance Options, Time Options or Rollover
Options were transferred. Except in the case of a Permitted Transfer pursuant to
clause (ii) above, from and after the date on which a Permitted Transfer becomes
effective, the Permitted Transferee of the Shares, Performance
Options, Time Options or Rollover Options so transferred shall have the same
rights, and shall be bound by the same obligations, under this Agreement as the
transferor of such Shares, Performance Options, Time Options or Rollover Options
and shall be deemed for all purposes hereunder (i) a "Berkshire Stockholder" in
the case of a Permitted Transfer from a Berkshire Stockholder, (ii) a
"Management Stockholder" in the case of a Permitted Transfer from a Management
Stockholder or (iii) an "Other Stockholder" in the case of a Permitted Transfer
from an Other Stockholder. No Permitted Transfer shall conflict with or result
in any violation of a judgment, order, decree, statute, law, ordinance, rule or
regulation.
"Permitted Transferee" shall mean any Person who shall have acquired and
who shall hold Shares, Performance Options, Time Options or Rollover Options
pursuant to a Permitted Transfer.
"Person" shall mean any individual, partnership, corporation, association,
limited liability company, trust, joint venture, unincorporated organization or
entity, or any government, governmental department or agency or political
subdivision thereof.
"Proportionate Share" shall have the meaning as set forth in Section
2.1(c)(iii)
"Proprietary Information" shall have the meaning as set forth in Section
2.7.
"Public Offering" shall mean the completion of a sale of Common Stock
pursuant to a registration statement which has become effective under the 1933
Act (excluding registration statements on Form X-0, X-0 or similar limited
purpose forms), in which the Common Stock shall be listed and traded on a
national exchange or on the NASDAQ National Market System.
"register," "registered" and "registration" shall have the meaning as set
forth in Section 3.1.
"Registrable Securities" shall mean (i) all shares of Common Stock held by
any Stockholder, (ii) all shares of Common Stock issuable upon the exercise of
Performance Options, Time Options and Rollover Options, in each case, to the
extent exercisable, held by any Stockholder, and (iii) any other common equity
securities of the Company issued in exchange for, upon a reclassification of, or
in a distribution with respect to, such Common Stock. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (a) a registration statement (other than a registration statement on Form
S-8) with respect to the sale of such securities shall have become effective
under the 1933 Act and such securities shall have been disposed of in accordance
with such registration statement, (b) a registration statement on Form S-8 with
respect to such securities shall have become effective under the 1933 Act, or
(c) such securities shall have been sold under Rule 144 (or any successor
provision) under the 1933 Act and such securities may be resold by the Holder
thereof without registration under the 1933 Act.
"Rollover Options" shall mean, collectively, the vested options retained by
certain Management Stockholders under the Incentive Plan, to purchase shares of
Common Stock on the terms set forth therein and in the Stock Option Agreements
issued pursuant thereto.
"Sale Request" shall have the meaning as set forth in Section 2.3(a).
"Schedule" shall refer to the Schedule of Stockholders attached hereto as
EXHIBIT A, as amended from time to time.
"SEC" shall mean the United States Securities and Exchange Commission.
"Seller" shall have the meaning as set forth in Section 2.3(a).
"Shares" shall mean (i) shares of Common Stock held by Stockholders from
time to time, or (ii) securities of the Company issued in exchange for, upon
reclassification of, or as a distribution in respect of, the foregoing.
"Stock Acquisition Agreements" shall mean the Stock Acquisition Agreements
dated as of October 30, 1996, by and between the Company and each of Xxxx X.
Xxxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxx, X. Xxxxxx Xxxxxx, Xxxxx X. Xxx, Xxxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx, Xxx
X. Xxxxx, Xxxxx X. Xxxx, Xxxxxx Xxxxxxxx, Xxxxxxxxx X. Xxxxx, XX, Xxxxxxx X.
Xxxxxxx, Xx. and Xxxxxx X. Xxxxxx, Xx.
"Stock Option Agreements" shall mean the Stock Option Agreement pursuant to
the Xxxxxx Holdings, Inc. Senior Management Stock Incentive Plan between the
Company and each of Xxxxxxxxx X. Xxxxx, XX (dated October 30, 1996, as amended
April 28, 1998), Xxxxx X. Xxxxx (dated October 30, 1996, as amended April 28,
1998), Xxxxxx Xxxxxxxx (dated October 30, 1996, as amended April 28, 1998),
Xxxxxxx X. Xxxxxxx, Xx. (dated October 30, 1996, as amended April 28, 1998),
Xxxxxxx X. Xxxxx (dated October 30, 1996, as amended April 28, 1998, dated April
1, 1998 and dated March 17, 1999), Xxxxxxx Xxxxx (dated March 22, 1999), Xxxxxx
Xxxxx (dated March 1, 1998, as amended May 4, 1998), Xxxxxxx X. Xxxxxxx (dated
October 30, 1996, as amended April 28, 1998), Xxxxxx X. Xxxxx (dated October 30,
1996, as amended April 28, 1998), Xxxxxxxx X. Xxxxxx (dated October 30, 1996, as
amended April 28, 1998), Xxx X. Xxxxx (dated October 30, 1996, as amended April
28, 1998), Xxxxxx X. Xxxxxx, Xx. (dated October 30, 1996, as amended April 28,
1998), X. Xxxxxx Xxxxxx (dated June 1, 1999), Xxxxxx Xxxxxxxx (dated June 1,
1999), Xxxxx X. Xxxxxx (dated June 1, 1999), Xxxxx X. Xxxxxxx (dated June 19,
1997, as amended April 28, 1998 and dated March 17, 1999) and Xxxxxx X. Xxxxx
(dated April 1, 1997, as amended April 28, 1998).
"Stock Purchase Agreement" shall have the meaning set forth in the
recitals.
"Stockholders" shall mean, collectively, the Berkshire Stockholders, the
Management Stockholders and the Other Stockholders.
"Subsidiary" with respect to any entity (the "parent") shall mean any
corporation, company, firm, association or trust of which such parent, at the
time in respect of which such term is used, (i) owns directly or indirectly more
than fifty percent (50%) of the equity or beneficial interest, on a consolidated
basis, or (ii) owns directly or controls with power to vote, directly or
indirectly through one or more Subsidiaries, shares of the equity or beneficial
interest having the power to elect more than fifty percent (50%) of the
directors, trustees, managers or other officials having powers analogous to that
of directors of a corporation. Unless otherwise specifically indicated, when
used herein the term Subsidiary shall refer to a direct or indirect Subsidiary
of the Company.
"Take Along Group" shall have the meaning as set forth in Section 2.3(a).
"Third Party" shall mean any Person other than the Company.
"Time Options" shall mean, collectively, the time vested options, granted
to certain Management Stockholders under the Incentive Plan, to purchase shares
of Common Stock on the terms set forth therein and in the certificates and
agreements issued pursuant thereto.
"Transfer" shall mean to transfer, sell, assign, pledge, hypothecate, give,
create a security interest in or lien on, place in trust (voting or otherwise),
assign or in any other way encumber or dispose of, directly or indirectly and
whether or not by operation of law or for value, any Shares, Performance
Options, Time Options or Rollover Options.
"Transfer Date" shall have the meaning as set forth in Section 2.1(c)(i).
"Transferor" shall have the meaning as set forth in Section 2.4(a).
"Transferring Stockholder" shall have the meaning as set forth in Section
2.1(c)(i).
"Voluntary Termination" shall mean any voluntary termination of employment
with the Company or a Subsidiary of the Company by a Management Stockholder,
except as otherwise specified in an effective written agreement, if any, between
the Company and/or one of its Subsidiaries and such Management Stockholder. The
term Voluntary Termination shall not include termination of employment due to
death, Disability or retirement in accordance with Company policy.
ARTICLE II.
COVENANTS AND CONDITIONS
Subject to the provisions of Section 4.8 hereof relating to the termination
of certain provisions of this Agreement, the following covenants and conditions
shall apply.
2.1. RESTRICTIONS ON TRANSFERS; INVOLUNTARY TRANSFERS.
(a) No Management Stockholder or Other Stockholder may Transfer
all or any of the Shares owned by such Management Stockholder or Other
Stockholder to any Person other than (i) a Permitted Transferee, (ii)
pursuant to Section 2.2, (iii) pursuant to Section 2.3 in accordance with a
Sales Request, or (iv) pursuant to Section 2.4 as a Participating Offeree.
Any attempted Transfer of Shares not permitted by this Section 2.1 shall be
null and void, and the Company shall not in any way give effect to such
nonpermissible Transfer. Any attempted Transfer of Performance Options,
Time Options or Rollover Options not permitted by the Incentive Plan shall
be null and void, and the Company shall not in any way give effect to such
nonpermissible Transfer.
(b) TRANSFERRED SHARES SUBJECT TO TRANSFER RESTRICTIONS. Any
Shares Transferred pursuant to this Section 2.1 shall remain subject to the
Transfer restrictions of this Agreement and each intended transferee
pursuant to this Section shall execute and
deliver to the Company a counterpart of this Agreement, which shall
evidence such transferee's agreement that the Shares intended to be
transferred shall continue to be subject to this Agreement and that as to
such Shares the transferee shall be bound by the restrictions of this
Agreement as a Stockholder hereunder.
(c) INVOLUNTARY TRANSFERS.
(i) Any Stockholder who is the subject of an Involuntary
Transfer (as defined below) (the "Transferring Stockholder"), shall
notify the Company and the other Stockholders in writing within ten
(10) days of such Involuntary Transfer (but the failure to give such
notice shall not affect the rights of the parties hereunder). For
purposes of this Section 2.1(c), the later of receipt of such notice
by the Company and the other Stockholders and the date of such
Involuntary Transfer shall be the "Transfer Date".
(ii) For a period of twenty (20) days after the Transfer
Date (the "Company Option Period"), the Company may, by notice in
writing to the Transferring Stockholder, elect in writing to
purchase any or all of the Shares subject to the Involuntary
Transfer at the Fair Market Value of such Shares.
(iii) If the Company does not elect to purchase any of the
Shares subject to the Involuntary Transfer, or exercises such right
only with respect to a portion of such Shares, then for a period of
twenty (20) days commencing on the earlier of (a) the date, if any,
that the Transferring Stockholder notifies the other Stockholders in
writing that the Company has determined either not to exercise such
right of purchase or to exercise such right only with respect to a
portion of the Shares subject to the Involuntary Transfer, and (b)
the expiration of the Company Option Period, the other Stockholders
shall have the right to purchase all or any portion of such Shares
subject to the Involuntary Transfer not so elected to be purchased
by the Company, at the Fair Market Value of such Shares. The
specific number of such Shares subject to the Involuntary Transfer
remaining after the Company has exercised its right pursuant to
clause (ii) to which each other Stockholder shall be entitled to
purchase shall be determined on a PRO RATA basis in proportion to
the respective number of shares of Common Stock owned beneficially
by each such Stockholder as of the Transfer Date in relation to the
total number of shares of Common Stock owned beneficially by all
such Stockholder (for each such Stockholder, its "Proportionate
Share"). Each such Stockholder shall also be entitled to indicate a
desire to purchase all or a portion of any Shares subject to the
Involuntary Transfer remaining after such PRO RATA allocation. Each
such Stockholder shall be allocated the maximum amount of Shares
subject to the Involuntary Transfer set forth in such Stockholder's
offer to purchase, unless such allocation would result in the
allocation of more securities in the aggregate than are available
for purchase by the other Stockholders, in which case such Shares
subject to the Involuntary Transfer shall be allocated among the
Stockholders PRO RATA in accordance with each such Stockholder's
Proportionate Share; PROVIDED, HOWEVER, that if the foregoing
results in any Stockholder being allocated more than the maximum
amount of Shares subject to
the Involuntary Transfer specified in such Stockholder's offer to
purchase, such Stockholder will be allocated such maximum amount and
the excess will be allocated as provided in this sentence (including
this proviso).
(iv) Any Shares subject to the Involuntary Transfer not
accepted pursuant to clauses (ii) and (iii) above shall be
Transferred in accordance with the terms and conditions of the
Involuntary Transfer.
(v) The closing of the purchase and sale of any Shares
subject to the Involuntary Transfer hereunder shall be held at the
offices of the Company on such dates and times as the parties may
agree but in all events within twenty (20) days following
termination of the offer period granted to the other Stockholders.
(vi) For purposes of this Agreement, the term "Involuntary
Transfer" shall mean any involuntary sale, transfer, encumbrance or
other disposition (other than as a result of the death of the
Stockholder) by or in which any Stockholder shall be deprived or
divested of any right, title or interest in or to any Shares,
including without limitation (I) any levy of execution, transfer in
connection with bankruptcy, reorganization, insolvency or similar
proceedings, (II) any transfer to a public officer or agency
pursuant to any abandoned property or escheat law, or (III) any
transfer to the spouse of an individual or change in the record
holder made pursuant to divorce proceedings. A Transfer pursuant to
Section 2.2 shall not be deemed to be an Involuntary Transfer.
2.2. CALL BY THE COMPANY OF MANAGEMENT STOCKHOLDERS' EQUITY INTERESTS.
(a) Upon the termination of the employment of any Management
Stockholder by the Company or any of its Subsidiaries (a "Call Event") for
any reason, the Company or its designee shall have the right to purchase
(the "Call Option"), by delivery of a written notice (the "Call Notice") to
such terminated Management Stockholder no later than ninety (90) days after
the date of such Call Event, and such Management Stockholder and such
Management Stockholder's Permitted Transferees (collectively, the "Call
Group") shall be required to sell all (but not less than all) of the Call
Securities at a price per share (or per option) equal to the Call Price (as
defined below) of such Call Securities determined as of the date of
repurchase pursuant to the Call Notice.
(b) For purposes of this Section 2.2, the term "Call Price" shall
mean:
(i) with respect to any Shares (including Shares
purchased upon exercise of Rollover Options, Time Options and
Performance Options) held by the Call Group,
(A) in the event of a termination of a Management
Stockholder's employment (w) by the Company without Cause,
(x) by virtue of death or Disability, (y) upon retirement in
accordance with Company policy, or (z) by Voluntary
Termination on or after the third anniversary of the date
hereof, the Fair Market Value of such Shares; and
(B) in the event of a termination of a Management
Stockholder's employment by (x) Voluntary Termination prior
to the third anniversary of the date hereof or (y) by the
Company for Cause, the lower of (I) the Investment Price of
such Shares, or (II) the Fair Market Value of such Shares.
(ii) with respect to any vested Time Options, vested
Performance Options or Rollover Options, the difference between (x)
the Call Price for the Shares underlying such Time Options or
Rollover Options, as the case may be (calculated as if the Shares
underlying such Time Options, Performance Options or Rollover
Options, as the case may be were outstanding and had been called
pursuant to this Section 2.2 and therefore calculated in accordance
with the procedures set forth in clause 2.2(b)(i) above) minus (y)
the exercise price of such vested Time Options, vested Performance
Options or Rollover Options, as the case may be; PROVIDED, that such
difference shall not be less than zero;
(iii) with respect to any unvested Time Options or unvested
Performance Options, such options shall automatically expire as set
forth in the Option Certificates pursuant to which they were
granted.
(c) The closing of any purchase of Call Securities by the Company
pursuant to Section 2.2(a) shall take place at the principal office of the
Company no later than 185 days after the Call Event. At such closing, the
Company shall deliver to the Call Group consideration in an amount equal to
the aggregate Call Price payable in respect of such Call Securities against
delivery of (i) original stock certificates and stock powers duly endorsed
in favor of the Company representing the Call Securities, and (ii) an
executed agreement, in form reasonably satisfactory to the Company,
evidencing the cancellation of any vested Time Options, Rollover Options
and vested Performance Options purchased at such closing. The Company shall
pay the Call Price by paying the Call Group in cash; PROVIDED, HOWEVER,
that in the event that any such cash payment could, in the reasonable
judgement of the Board, cause the Company or any Subsidiary to be in
violation of applicable law or in default under or otherwise in violation
of the terms of any material loan or credit agreement to which the Company
or any of its Subsidiaries is a party (a "Default"), the Company shall pay
such cash portion of the Call Price by issuing a subordinated promissory
note in a principal amount equal to the cash portion of the purchase price
(the "Company Note"). The principal of such note will be due and payable in
five equal annual installments, the first such installment becoming due and
payable on the first anniversary of the issuance of such note, and interest
will accrue thereon at a rate equal to the Mid-term Applicable Federal Rate
plus three percent (3%) from the date of issuance of the Company Note and
will be payable quarterly in arrears. Such Company Note may be prepaid by
the Company in whole at any time or in part from time to time without
premium or penalty and shall otherwise be in the form acceptable to the
Board; PROVIDED, HOWEVER, that if at any time after a Company Note has been
issued, the Board determines that prepaying such Company Note in whole
would not reasonably be likely to cause a Default, the Company Note shall
then be prepaid in full at such time. Notwithstanding anything to the
contrary in this Agreement, the Company shall not be obligated to make any
cash payment pursuant to this Section 2.2(c)
or any cash payment of principal or interest due under a Company Note if
such payment would cause a Default. In the event the Company cannot make
any cash payment under this Section 2.2(c) or the cash payments of
principal and interest due under a Company Note because it is in Default or
would be in Default by virtue of such payments, the Company will undertake
to make such payments at such time as the Company is no longer in, or would
no longer be by virtue of such payments in, Default.
(d) Notwithstanding anything set forth in this Section 2.2 to the
contrary, prior to the exercise by the Company of its Call Option to
purchase Call Securities pursuant to this Section 2.2, the Board of
Directors may designate one or more new or existing employees of the
Company or any Subsidiary (individually a "Designated Employee" and
collectively, the "Designated Employees") or another Stockholder who shall
have the right, but not the obligation, to exercise the Call Option and to
acquire, in lieu of the Company, some or all (as determined by the Company)
of the Call Securities that the Company is entitled to purchase from the
Call Group hereunder, on the same terms and conditions as set forth in
Section 2.2(c) which apply to the purchase of Call Securities by the
Company, except all payments pursuant to this Section 2.2(d) shall be made
in immediately available funds or by certified or cashier's check, and
shall not be payable in the form of a note of any kind. Concurrently with
any such purchase of Call Securities by any such Designated Employee, such
Designated Employee shall execute a counterpart of this Agreement,
whereupon such Designated Employee shall be deemed a "Management
Stockholder" and shall have the same rights and be bound by the same
obligations as the Management Stockholders hereunder.
(e) In the event of a termination of a Management Stockholder for
any reason other than the Voluntary Termination of such Management
Stockholder or for Cause and, within six (6) months after such termination,
the Company consummates a Public Offering or a Change in Control
transaction, or a Change in Control transaction is agreed upon in a
definitive agreement, the Company shall pay to the Management Stockholder,
subject to the provisions of clauses (c) and (d) above, cash in an amount
equal to the Gross-Up Amount for each Share or Option purchased pursuant to
this Section 2.2. Notwithstanding the foregoing, in the case of a Change in
Control transaction that is agreed upon in a definitive agreement within
six (6) months after the date of termination of the Management Stockholder,
the Management Stockholder shall not be entitled to receive any cash
pursuant to this clause (e) unless such Change in Control transaction is
consummated within six (6) months after execution of such definitive
agreement.
2.3. TAKE ALONG.
(a) If at any time, any of the Stockholders constituting more
than fifty (50%) of the Common Stock Equivalents, individually or acting as
a group (such Stockholders, as applicable, being referred to herein as the
"Take Along Group") elect to consummate, or cause the Company to
consummate, a Company Sale to a Third Party which is not an Affiliate of
any Stockholder included in the Take Along Group, then upon twenty (20)
days' written notice by the Take Along Group to each other Stockholder,
which notice shall set forth the terms and conditions of such proposed
Company Sale, including the name of the prospective transferee, the number
of shares of Common Stock and Common
Stock Equivalents proposed to be sold by the Take Along Group in the
Company Sale, the consideration to be received by the Take Along Group and
the proposed time and place of closing (such notice being referred to as
the "Sale Request"), each other Stockholder (each, a "Seller"), in the
event the Company Sale is consummated, shall be obligated to consummate,
consent to and raise no objection to the proposed Company Sale and take all
other actions reasonably necessary or desirable to consummate the proposed
Company Sale on the terms proposed by the Take Along Group as set forth in
the Sale Request. Without limiting the generality of the foregoing, (i) if
the Company Sale is structured as a merger, consolidation or similar
business transaction, each Seller will vote or cause to be voted all Shares
that he holds or with respect to which he has the power to direct the
voting and which he is entitled to vote on such proposed Company Sale in
favor of such proposed Company Sale and will waive all appraisal and
dissenters rights and hereby grants a proxy in favor of the Take Along
Group to vote the Seller's Shares in accordance with this Section 2.3(a)
and (ii) if the Company Sale is structured as a sale or redemption of
Common Stock, each Seller will agree to sell his PRO RATA portion of Common
Stock Equivalents (including his PRO RATA portion of Time Options, Rollover
Options and Performance Options which would become Common Stock Equivalents
by reason of the Company Sale) being sold in the Company Sale on the same
terms and conditions as the Take Along Group. A Stockholder's PRO RATA
portion, for purposes of this Section 2.3(a), is the product of (i) a
fraction, the numerator of which is the number of outstanding Common Stock
Equivalents which such Stockholder then owns and the denominator of which
is the total number of such Common Stock Equivalents then actually
outstanding and (ii) the total number of Common Stock Equivalents being
sold in the Company Sale. Each proxy granted above in this Section 2.3(a)
is irrevocable, coupled with an interest and shall survive until the
expiration of the provisions of this Section 2.3(a). If required, each
Seller shall (i) deliver certificates for all of its Shares being
Transferred pursuant to this Section 2.3(a) at the closing of the proposed
Transfer, free and clear of all claims, liens and encumbrances. The terms
and conditions of any sale pursuant to this Section 2.3(a) shall be the
same as set forth in the Sale Request; PROVIDED, HOWEVER, that in the case
of Performance Options, Time Options and Rollover Options, the holders of
such securities shall have the opportunity to either (i) exercise such
Performance Options, Time Options and Rollover Options (if such Performance
Options, Time Options or Rollover Options are exercisable or would be
exercisable upon consummation of the Company Sale) and participate in such
sale as holders of Common Stock issuable upon such exercise, or (ii) upon
the consummation of the sale, receive in exchange for such Performance
Options, Time Options and Rollover Options the amount determined by
multiplying (1) the same amount of consideration per share received by the
Stockholders for which the Performance Option or Time Option is exercisable
less the exercise price or conversion price per share of such Performance
Option or Time Option by (2) the number of shares of Common Stock
represented by such Performance Options, Time Options and Rollover Options.
(b) Each Stockholder, whether in his capacity as a Seller,
Stockholder, officer or director of the Company, or otherwise, shall take
or cause to be taken all commercially reasonable actions in order
expeditiously to consummate any Company Sale and any related transactions,
including, without limitation, executing, acknowledging and delivering
consents, assignments, waivers and other documents or instruments as may be
reasonably requested and otherwise cooperating with the Take Along Group
and any prospective buyer; PROVIDED, HOWEVER, that Stockholders shall be
obligated to become liable in respect of any representations, warranties,
covenants, indemnities or otherwise to the Third Party solely to the extent
provided in the immediately following sentence. Without limiting the
generality of the foregoing, each Stockholder agrees to execute and deliver
such agreements as may be reasonably specified by the Take Along Group to
which such Take Along Group will also be party, including, without
limitation, agreements to (i) (1) make individual representations,
warranties, covenants and other agreements as to the unencumbered title to
its Shares and the power, authority and legal right to Transfer such Shares
and the absence of any Adverse Claim with respect to such Shares and (2) be
liable without limitation as to such representations, warranties, covenants
(including without limitation, covenants not to compete, as appropriate)
and other agreements and (ii) be liable (whether by purchase price
adjustment, indemnity payments or otherwise) in respect of representations,
warranties, covenants and agreements in respect of the Company and its
subsidiaries; PROVIDED, HOWEVER, that the aggregate amount of liability
described in this clause (ii) in connection with any Company Sale shall not
exceed the lesser of (I) such Stockholder's pro rata portion of any such
liability, to be determined in accordance with such Stockholder's portion
of the total value for his, her or its Shares included in such Company Sale
or (II) the proceeds to such Stockholder in connection with such Company
Sale.
2.4. COME ALONG. No Stockholder may Transfer Shares to a Third Party who
is not a Permitted Transferee without complying with the terms and conditions
set forth in this Section 2.4.
(a) Any Stockholder or group of Stockholders when desiring to
Transfer Shares (the "Transferor") shall give not less than fifteen (15)
days prior written notice of such intended Transfer to each other
Stockholder and the Company. Such notice (the "Participation Notice") shall
set forth the terms and conditions of such proposed Transfer, including the
name of the prospective transferee, the number of Shares proposed to be
transferred (the "Participation Securities") by the Transferor, the
percentage of the total number of shares of Common Stock held by the
Transferor that the Participation Securities constitutes of such class (the
"Come Along Percentage"), the purchase price per share of Common Stock
proposed to be paid therefor, the payment terms and type of transfer to be
effectuated and the proposed time and place of closing. Within fifteen (15)
days following the delivery of the Participation Notice by the Transferor
to each other Stockholder and to the Company, each other Stockholder
desiring to participate in such proposed Transfer (each, a "Participating
Offeree") shall, by notice in writing to the Transferor and to the Company,
have the opportunity and right to sell to the purchasers in such proposed
Transfer (upon the same terms and conditions as the Transferor) up to that
number of shares of Common Stock, as the case may be, subject to the last
sentence of Section 2.4(c) below, as shall equal the product of (i) the
Come Along Percentage for the Common Stock, as the case may be, and (ii)
the number of shares of Common Stock which will be owned by such
Participating Offeree as of the proposed date of closing set forth in the
Participation Notice without giving effect to the transfer contemplated
hereby; PROVIDED, HOWEVER, that for purposes of determining whether Options
owned by a Management Stockholder will be vested, such determination will
be made after giving
effect to the transfer contemplated hereby and the Board, in its reasonable
judgment, within five (5) business days after the Participation Notice is
delivered to the Company, will make a Board Participation Determination for
each Management Stockholder and notify such Management Stockholder of such
Board Participation Determination. No Management Stockholder may
participate in the proposed Transfer with respect to any Options which may
vest upon consummation of the Transfer in excess of the Board Participation
Determination and notwithstanding the Board Participation Determination, no
Management Stockholder may sell or transfer in the proposed Transfer any
unvested Time Options or any unvested Performance Options if such options
do not become vested upon consummation of the proposed Transfer. The
Transferor shall attempt to obtain inclusion in the proposed Transfer of
the entire number of Shares which the Transferor and the Participating
Offerees desire to have included in the proposed Transfer. In the event the
Transferor shall be unable to obtain the inclusion of such entire number of
shares of Common Stock in the proposed Transfer, the number of shares of
Common Stock to be sold in the Proposed Transfer by each Participating
Offeree and the Transferor shall be determined in accordance with Section
2.4(c) below. The terms and conditions of any sale pursuant to this Section
2.4(a) shall be the same as set forth in the Participation Notice, except
as is provided in Section 2.4(c) below and except that the actual date of
the closing of any proposed Transfer may change.
(b) At the closing of any proposed Transfer in respect of which a
Participation Notice has been delivered, the Transferor, together with all
Participating Offerees, shall deliver to the proposed transferee
certificates evidencing the Shares to be sold thereto duly endorsed with
stock powers and shall receive in exchange therefor the consideration to be
paid or delivered by the proposed transferee in respect of such Shares as
described in the Participation Notice.
(c) The acceptance of each Participating Offeree shall be
irrevocable except as hereinafter provided, and each such Participating
Offeree shall be bound and obligated to sell, on the same terms and
conditions specified in the Participation Notice as the Transferor (subject
to all of the provisions of this Agreement), such number of Shares as
specified in such Participating Offeree's written commitment; PROVIDED,
HOWEVER, that in the case of Performance Options, Time Options and Rollover
Options (for which the exercise price is less than the price per share of
Common Stock being paid in the Transfer), the holders of such securities
shall have the opportunity to either (i) exercise such Performance Options,
Time Options and Rollover Options (if then exercisable) and participate in
such sale as holders of Common Stock issuable upon such exercise or
conversion, or (ii) upon the consummation of the sale, receive in exchange
for such Options the amount determined by multiplying (1) the same amount
of consideration per share of Common Stock received by the other
Stockholders less the exercise price per share of such Performance Option
and Time Option by (2) the number of shares of Common Stock of such class
represented by such Performance Option or Time Option. In the event the
Transferor shall be unable to obtain the inclusion in the sale of all
Shares which the Transferor and each Participating Offeree desires to have
included in the sale, the number of Shares to be sold in the sale by the
Transferor and each Participating Offeree shall be reduced on a PRO RATA
basis according to the proportion which the
number of Shares which each such party desires to have included in the sale
bears to the total number of Shares desired by all such parties to have
included in the sale.
(d) The provisions of this Section 2.4 shall not in any way limit
or affect the restrictions placed on the Stockholders by Section 2.1 and
shall not apply to (i) any Transfer to the Company or other Stockholders
pursuant to Section 2.1, (ii) any Transfer pursuant to Section 2.2, (iii)
any Transfer pursuant to Section 2.3 or (iv) any Permitted Transfer.
2.5. CORPORATE GOVERNANCE.
(a) BOARD OF DIRECTORS. At each annual meeting of the
Stockholders and at each special meeting of the Stockholders called for the
purpose of electing directors of the Company, and at any time at which
stockholders of the Company shall have the right to, or shall, vote for
directors of the Company, then, and in each event, the Stockholders hereby
agree to attend each meeting in person or by proxy and hereby agree to vote
stock of the Company and shares of the Company now owned or hereafter
acquired by him, her or it (whether at a meeting or by written consent in
lieu thereof) (i) to fix the number of members of the Board at up to seven
(7) (unless the Board is expanded pursuant to Section 2.4(b) hereto, in
which case to fix the number of members of the Board in accordance with
Section 2.4(b) hereto), and (ii) to elect and thereafter to continue in
office as a director of the Company the following: (a) two (2) directors
nominated by the Berkshire Stockholders (who shall initially be Xxxxxxx X.
Xxxxx and Xxxx X. Xxxxx) (collectively the "Berkshire Representatives");
(b) three (3) directors nominated by the Management Stockholders (who shall
initially be Xxxxxxxxx X. Xxxxx, XX, Xxxxx X. Xxxxx and Xxxxxx Xxxxxxxx)
(collectively, the "Management Representatives"), and (c) up to two (2)
directors who are not officers or employees of the Company, who shall be
nominated by mutual consent of the Berkshire Stockholders (as a group) and
the Management Stockholders (as a group) (the "Outside Representatives").
As to the directors elected to the Board pursuant to this Section 2.4(a) or
Section 2.4(b), the following provisions shall apply: (i) no Berkshire
Representative may be removed without the consent of a majority in interest
of the Berkshire Stockholders, except for cause as determined in good faith
by unanimous decision of all directors other than the Berkshire
Representatives, (ii) no Management Representative may be removed without
the consent of a majority in interest of the Management Stockholders,
except for cause as determined in good faith by unanimous decision of all
directors other than the Management Representatives, PROVIDED, that in the
event of a determination by the Board pursuant to clause (i) or (ii) of
this sentence to remove a director, each Stockholder shall take all action
as may be necessary or appropriate, including without limitation, the
voting of all Shares owned by such Stockholder, to effect the removal of
such director. Any vacancy on the Board shall be filled by the designee of
the Stockholders who would be entitled to designate such director pursuant
to this Section 2.5(a) or Section 2.5(b), as the case may be, and if there
shall be no such designation right, such vacancy may be filled by the
remaining directors. Each Stockholder shall, upon receipt of notice
identifying such designee, take all action as may be necessary or
appropriate, including without limitation, the voting of all Shares owned
by such Stockholder, to elect the director so designated.
(b) PROPORTIONAL REPRESENTATION. Upon a majority vote of the
holders of Common Stock, the composition of the directors constituting the
Board of Directors shall be changed so that after designating directors in
accordance with this Section 2.5(b), each of the Berkshire Stockholders and
the Management Stockholders shall have represented on the Board that number
of directors (rounded up to the nearest whole number) represented by the
percentage equal to (x) the number of shares of Common Stock held by such
stockholder group over (y) the total number of shares of Common Stock held
by all Stockholders. In the event that the size of the Board of Directors
needs to be increased in order to establish the foregoing representation,
each Stockholder shall take all action as may be necessary or appropriate,
including without limitation, the voting of all Shares owned by such
Stockholder, to effect the increase in the size of the Board. Each
Stockholder agrees that such Stockholder shall take all action as may be
necessary or appropriate, including without limitation, the voting of all
Shares owned by them, to elect the directors so designated by the
Stockholders as set forth in this Section 2.5(b).
(c) SUBSIDIARIES; COMMITTEES. Unless the Board unanimously
determines otherwise, the board of directors of each Subsidiary of the
Company and the audit committee, the compensation committee and all other
authorized committees of the Board and of each Subsidiary's board of
directors shall be composed so that the representation thereon shall be in
the same proportion, as nearly as may be possible (subject to any foreign
law requirements, where applicable), as the representation of such
directors on the Board; PROVIDED, HOWEVER, that no Management
Representative shall sit on the audit committee or the compensation
committee.
2.6. RIGHTS OF PARTICIPATION.
(a) RIGHTS OF PARTICIPATION. The Company hereby grants to each
Stockholder so long as it shall own any Shares, the right to purchase up to
a PRO RATA portion of New Securities (as defined in paragraph (b) below)
which the Company, from time to time, proposes to sell or issue following
the date hereof. A Stockholder's PRO RATA portion, for purposes of this
Section 2.6, is the product of (i) a fraction, the numerator of which is
the number of outstanding Shares which such Stockholder then owns (on a
fully diluted basis after giving effect to the exercise of all Rollover
Options, vested Time Options and vested Performance Options and the like
and the conversion of all securities convertible into or exchangeable for
Common Stock) and the denominator of which is the total number of such
Shares then actually outstanding (on a fully diluted basis after giving
effect to the exercise of all Rollover Options, vested Time Options and
vested Performance Options and the like and the conversion of all
securities convertible into or exchangeable for Common Stock), multiplied
by (ii) the number of New Securities the Company proposes to sell or issue.
(b) DEFINITION OF NEW SECURITIES. "New Securities" shall mean any
Common Stock or other equity securities of the Company whether now
authorized or not, any rights, options or warrants to purchase Common Stock
or other equity securities and any indebtedness or preferred stock of the
Company which is convertible into Common Stock or other equity securities
(or which is convertible into a security which is, in turn, convertible
into Common Stock or other equity securities); PROVIDED, that the term "New
Securities" does not include (i) indebtedness of the Company which is not
by its terms convertible into Common Stock; (ii) Common Stock issued as a
stock dividend to all holders of Common Stock PRO RATA or upon any
subdivision or combination of shares of Common Stock; (iii) Common Stock
issued to any employee or director and approved by the Board of Directors
and any employee or director stock options approved by the Board of
Directors; (iv) Common Stock issued in exchange for the cancellation or
retirement of any debt securities of the Company or in connection with any
restructuring or other financial workout of the Company; (v) Common Stock
or warrants to purchase Common Stock issued to non-Affiliates of the
Company as part of a bona fide debt offering of units comprised of such
Common Stock or warrants and a debt security of the Company; (vi) Common
Stock issued in connection with the acquisition of another corporation or
other entity by the Company by merger, purchase of substantially all assets
or other reorganization; (vii) the issuance of Common Stock upon the
exercise or conversion of any rights, options or warrants to purchase
Common Stock; (viii) Common Stock issuable in a Public Offering; or (ix)
Common Stock issued in respect of services provided (other than as an
employee) to the Company or its subsidiaries and approved by the Board of
Directors; and PROVIDED, FURTHER, that if any "New Securities" include
Common Stock and other equity securities coupled as a package, "New
Securities" shall mean the package of securities and not each class of
securities individually.
(c) NOTICE FROM THE COMPANY. In the event the Company proposes to
issue New Securities, the Company shall give each Stockholder who has a
right of participation under this Section 2.6 written notice of such
proposal, describing the type of New Securities and the price and the terms
upon which the Company proposes to issue the same. For a period of ten (10)
business days following the delivery of such notice by the Company, the
Company shall be deemed to have irrevocably offered to sell to each
Stockholder its PRO RATA share of such New Securities for the price and
upon the terms specified in the notice. Each Stockholder may exercise its
rights of participation hereunder by giving written notice to the Company
and stating therein the quantity of New Securities to be purchased. Each
Stockholder shall also be entitled to indicate a desire to purchase all or
a portion of any New Securities remaining after such PRO RATA allocation.
If, as a result of such oversubscription right, such oversubscriptions
exceed the total number of New Securities available in respect of such
oversubscription right, the oversubscribing Stockholders shall be cut back
with respect to their oversubscriptions on a PRO RATA basis or as they may
otherwise agree among themselves.
(d) SALE BY THE COMPANY. In the event that the Stockholders who
have a right of participation under this Section 2.6 fail to commit to
purchase all of such New Securities within said ten (10) business day
period, the Company shall have ninety (90) days thereafter to sell the New
Securities with respect to which the right of participation was not
exercised, at a price and upon terms no more favorable to the purchasers
thereof than specified in the Company's notice given pursuant to Section
2.6(c).
(e) CLOSING. The closing for any such issuance shall take place
as proposed by the Company with respect to the New Securities to be issued,
at which closing the Company shall deliver certificates for the New
Securities in the respective names of the purchasing Stockholders against
receipt of payment therefor.
2.7. CONFIDENTIALITY. Each Stockholder shall maintain the confidentiality
of any confidential and proprietary information of the Company ("Proprietary
Information") using the same standard of care, but in no event less than
reasonable care, as it applies to its own confidential information, except for
any Proprietary Information which is publicly available or a matter of public
knowledge generally. Nothing herein shall prevent any Stockholder from using
Proprietary Information to enforce its rights under this Agreement or from
disclosing a summary of Proprietary Information to the partners of such
Stockholder as to the performance of the Company.
ARTICLE III.
REGISTRATION RIGHTS
3.1. GENERAL. For purposes of Article III: (a) the terms "register,"
"registered" and "registration" refer to a registration effected by preparing
and filing a registration statement in compliance with the 1933 Act and the
declaration or ordering of effectiveness of such registration statement; (b) the
term "Holder" means any Stockholder holding Registrable Securities; and (c) the
shares of Common Stock issuable upon the exercise of vested Time Options,
Rollover Options and vested Performance Options shall be deemed to be
outstanding and held by the holders of such vested Time Options, Rollover
Options and vested Performance Options.
3.2. DEMAND REGISTRATION INITIATED BY THE BERKSHIRE STOCKHOLDERS.
(a) Subject to paragraph (b) hereof, on or after the date on
which the Company has effected a Public Offering, if the Company shall
receive a written request (specifying that it is being made pursuant to
this Section 3.2) by or on behalf of Berkshire Stockholders holding an
aggregate of fifty percent (50%) or more of the Registrable Securities held
by the Berkshire Stockholders, that the Company file a registration
statement under the 1933 Act, or a similar document pursuant to any other
statute then in effect corresponding to the 1933 Act, covering the
registration of at least the lesser of (i) $20 million of Registrable
Securities (determined based upon the Fair Market Value of such Registrable
Securities on the date of request), or (ii) one hundred percent (100%) of
the Registrable Securities then held by the Berkshire Stockholders, then
the Company shall promptly notify all other Holders of such request and
shall use its best efforts to cause all Registrable Securities that the
Holders have requested (within thirty (30) days after such Company notice)
be registered, to be registered under the 0000 Xxx.
(b) If the total amount of Registrable Securities that the
Holders request to be included in such offering exceeds the amount of
securities that the underwriters reasonably believe compatible with the
success of the offering, then the Company will include in such registration
only the number of securities which, in the opinion of such underwriters,
can be sold in accordance with the procedures set forth in Section 3.3(b);
(c) The Company shall be obligated to effect for the Berkshire
Stockholders two (2) registrations of Registrable Securities pursuant to
this Section 3.2; PROVIDED, that
in the event that, at the request of the underwriters, the amount of
Registrable Securities that the Berkshire Stockholders requested to be
included in any offering is reduced by more than thirty percent (30%), such
offering shall be deemed not to be a registration demanded by the Berkshire
Stockholders for purposes of this Section 3.2.
3.3. PIGGYBACK REGISTRATION; REDUCTION IN REGISTRATION.
(a) If, at any time, the Company determines to register any of
its equity securities for its own account under the 1933 Act in connection
with the public offering of such securities solely for cash on a form that
would also permit the registration of any of the Registrable Securities,
the Company shall, at each such time, promptly give each Holder written
notice of such determination. Upon the written request of any Holder
received by the Company within thirty (30) days after the giving of any
such notice by the Company, the Company shall use its best efforts to cause
to be registered under the 1933 Act all of the Registrable Securities of
such Holder that each Holder has requested be registered. If the total
amount of Registrable Securities that are to be included by the Company for
its own account and at the request of Holders exceeds the amount of
securities that the underwriters reasonably believe compatible with the
success of the offering, then the Company will include in such registration
only the number of securities which in the opinion of such underwriters can
be sold, in the following order:
(i) first, the equity securities to be registered on
behalf of the Company; and
(ii) then the Registrable Securities requested to be
included by the Holders, PRO RATA, based on the number of
Registrable Securities owned by each of them which each of them
request be included in such registration; PROVIDED, HOWEVER, that if
an underwriter who is not an Affiliate or Associate of any Holder,
in good faith requests for the success of the offering, that the
number of Registrable Securities to be sold by any Holder be
apportioned or excluded, such number of Registrable Securities of
such Holder shall be reduced or not included to the extent so
requested by said underwriter.
(b) If the Company at any time proposes to register any of its
equity securities for the account of any Holder pursuant to Section 3.2 or
Section 3.9 of this Agreement, under the 1933 Act in connection with the
public offering of such securities solely for cash on a form that would
also permit the registration of any of the Registrable Securities, the
Company shall, at each such time, promptly give each Holder written notice
of such determination. Upon the written request of any Holder received by
the Company within thirty (30) days after the giving of any such notice by
the Company, the Company shall use its best efforts to cause to be
registered under the 1933 Act all of the Registrable Securities of such
Holder that such Holder has requested be registered. If the total amount of
Registrable Securities requested to be included by the requesting Holders
under Section 3.2 or 3.9, and at the request of the Company and the other
Holders, exceeds the amount of securities that the underwriters reasonably
believe compatible with the success of the offering, then the Company will
include in such registration only the
number of securities which in the opinion of such underwriters can be sold,
in the following order:
(i) first, the equity securities to be registered on
behalf of Stockholders initiating the demand, PRO RATA, based on the
number of Registrable Securities owned by each of them which each of
them request be included in such registration;
(ii) second, the equity securities to be registered on
behalf of the Company; and
(iii) third, the Registrable Securities requested to be
included by the other Holders, PRO RATA, based on the number of
Registrable Securities owned by each of them which each of them
request be included in such registration;
PROVIDED, HOWEVER, that if an underwriter who is not an Affiliate or
Associate of any Holder or the Company, in good faith, requests for the
success of the underwritten offering that the number of Registrable
Securities to be sold by any Holder or the Company be apportioned or
excluded, such number of Registrable Securities of such Holder or the
Company shall be reduced or not included to the extent so requested by said
underwriter.
3.4. OBLIGATIONS OF THE COMPANY. Whenever required under Sections 3.2,
3.3 or 3.9 to use its best efforts to effect the registration of any Registrable
Securities, the Company shall:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities, and use its best efforts to cause
such registration statement to become and remain effective;
(b) as expeditiously as reasonably possible, prepare and file
with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection with such registration statement as
may be necessary to comply with the provisions of the 1933 Act with respect
to the disposition of all securities covered by such registration
statement;
(c) as expeditiously as reasonably possible, furnish to the
Holders such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with requirements of the 1933 Act, and such other
documents they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
(d) as expeditiously as reasonably possible, use its best efforts
to register and qualify the securities covered by such registration
statement under the securities or Blue Sky laws of such jurisdictions as
shall be reasonably appropriate for the distribution of the securities
covered by the registration statement, PROVIDED that the Company shall not
be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
jurisdiction, and FURTHER PROVIDED that (anything in this Agreement to the
contrary notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the securities shall be qualified shall
require that expenses incurred in connection with the qualification of the
securities in that jurisdiction be borne by selling stockholders, then such
expenses shall be payable by selling stockholders PRO RATA, to the extent
required by such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with, or approved
by, such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(f) notify each seller of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act, upon discovery that, or upon
the happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made,
and at the request of any such seller or Holder, promptly prepare and file
with the SEC and furnish to such seller or Holder a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; PROVIDED, that, each
Holder agrees that it shall not sell any Registrable Securities covered by
such a registration statement upon notice from the Company until receipt of
notice that such statement or omission has been corrected.
(g) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve (12) months, but not more than eighteen (18)
months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the 1933 Act, and will furnish to each
seller at least two (2) business days prior to the filing thereof a copy of
any amendment or supplement to such registration statement or prospectus
and shall not file any amendment or supplement thereof to which any such
seller shall have reasonably objected, except to the extent required by
law, on the grounds that such amendment or supplement does not comply in
all material respects with the requirements of the 1933 Act or of the rules
or regulations thereunder;
(h) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement; and
(i) use its best efforts to list all Registrable Securities
covered by such registration statement on a securities exchange or the
NASDAQ National Market on which any class of Registrable Securities is then
listed.
3.5. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any act pursuant to this Article III that the
Holders selling Registrable Securities shall furnish to the Company such
information regarding them, the Registrable Securities held by them and the
intended method of disposition of such securities as the Company shall
reasonably request and as shall be required in connection with the action to be
taken by the Company.
3.6. EXPENSES OF REGISTRATION. All expenses incurred in connection with a
registration pursuant to Sections 3.2, 3.3 or 3.9 (excluding underwriters'
discounts and commissions, which shall be borne by the sellers), including
without limitation all registration and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company (which
counsel shall be reasonably satisfactory to the holders of a majority of the
Registrable Securities then being registered), and the reasonable fees and
disbursements of one counsel for the selling Holders (which counsel shall be
selected by the Holders which own a majority of the Registrable Securities being
sold under the applicable registration) shall be borne by the Company; PROVIDED,
HOWEVER, that all such expenses in connection with any amendment or supplement
to a registration statement or prospectus filed more than nine (9) months after
the effective date of such registration statement because any Holder of
Registrable Securities has not effected the disposition of the securities
requested to be registered shall be paid by such Holder; PROVIDED, FURTHER,
HOWEVER, that Holders initiating a demand may withdraw any request made pursuant
to Section 3.2, in which event such first withdrawn request shall be deemed for
all purposes herein not to have been made.
3.7. UNDERWRITING REQUIREMENTS. Each Holder selling Registrable
Securities in any registration pursuant to Sections 3.2 or 3.3 shall, as a
condition for inclusion of such Registrable Securities in such underwritten
registration, execute and deliver an underwriting agreement acceptable to the
Company and consented to by the Berkshire Stockholders, in the case of a
registration pursuant to Section 3.2, or acceptable to Holders who own a
majority of the Registrable Securities to be included in such registration, in
the case of a registration pursuant to Section 3.3, and the underwriters with
respect to such registration. Such underwriters shall be selected (i) by the
Company and consented to by the Berkshire Stockholders, in the case of a
registration pursuant to Section 3.3, or (ii) by a majority in interest of the
Registrable Securities to be included in such registration in all other cases
and shall be reasonably acceptable to the Company, in the case of a registration
pursuant to Section 3.3.
Notwithstanding the foregoing, each Holder shall take all action reasonably
necessary with respect to executing such underwriting agreement, including being
liable in respect of (i) any representations and warranties being made by each
selling Holder, and (ii) any indemnification agreements and "lock-up" agreements
made by each selling Holder for the benefit of the underwriters in such
underwriting agreement; PROVIDED, HOWEVER, that except with respect to
individual representations and warranties regarding such matters as legal
capacity or due organization of such participating Holder, authority to
participate in the Public Offering, compliance by such Holder with laws and
agreements applicable to it, ownership (free and clear of liens, charges,
encumbrances and adverse claims) of Registrable Securities to be sold by such
Holder and accuracy of information with respect to such Holder furnished for
inclusion in any disclosure document relating to each Public Offering, the
aggregate amount of the liabilities of such participating Holder pursuant to
such underwriting agreement shall not exceed either (a)
such participating Holder's PRO RATA portion of any such liability, in
accordance with such participating Holder's portion of the total number of
Registrable Securities included in the public offering, or (b) the net proceeds
received by such participating Holder from the public offering.
3.8. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Article III:
(a) To the fullest extent permitted by law, the Company will
indemnify and hold harmless each Holder (which term, for purposes of this
Section 3.8, shall include each Stockholder, including the Berkshire
Stockholders, the Management Stockholders and the Other Stockholders
holding Registrable Securities, and shall also include the directors,
officers and employees of the Stockholders and their Affiliates) requesting
or joining in a registration, any underwriter (as defined in the 0000 Xxx)
for a registration, and each Person, if any, who controls such Holder or
such underwriter within the meaning of the 1933 Act, against any and all
losses, claims, damages or liabilities, joint or several, to which any such
Holder, underwriter or Person may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based on any untrue or alleged untrue
statement of any material fact contained in a registration statement
relating to a registration pursuant to this Article III, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein not
misleading, or arise out of any violation by the Company of the 1933 Act or
any rule or regulation promulgated under the 1933 Act applicable to the
Company and relating to action or inaction required of the Company in
connection with any such registration, and will reimburse each such Holder,
underwriter or control Person for any and all legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability, action or proceeding; PROVIDED,
HOWEVER, that the indemnity agreement contained in this Section 3.8(a)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability, action or proceeding if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable to anyone for any such loss,
claim, damage, liability, action or proceeding to the extent that it arises
out of or is based upon an untrue statement or omission made in connection
with such registration statement, preliminary prospectus, final prospectus
or amendments or supplements thereto in reliance upon and in conformity
with written information furnished expressly for use in connection with
such registration by such Holder, underwriter or control Person. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Holder, underwriter or control
Person and shall survive the transfer of such securities by such Holder.
(b) To the fullest extent permitted by law, each Holder
requesting or joining in a registration will indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
registration statement, each Person, if any, who controls the Company
within the meaning of the 1933 Act, and each agent and any underwriter for
the Company and any Person who controls any such agent or underwriter
and each other Holder and any Person who controls such Holder (within the
meaning of the 0000 Xxx) against any and all losses, claims, damages or
liabilities, joint or several, to which the Company or any such director,
officer, control Person, agent, underwriter or other Holder may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings, whether commenced or
threatened in respect thereto) arise out of or are based upon an untrue
statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto, or arise out of or are based upon
the omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or omission
was made in such registration statement, preliminary or final prospectus,
or amendments or supplements thereto, in reliance upon and in conformity
with written information furnished by such Holder (other than information
furnished by such Holder on behalf of the Company in his or her capacity as
an officer or director of the Company) expressly for use in connection with
such registration; and such Holder will reimburse the Company and each such
director, officer, control Person, agent, underwriter or other Holder for
any and all legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; PROVIDED, HOWEVER, the indemnity
obligation of each such Holder hereunder shall be limited to and shall not
exceed the proceeds actually received by such Holder upon a sale of
Registrable Securities pursuant to a registration statement hereunder; and
PROVIDED, FURTHER that the indemnity agreement contained in this Section
3.8(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, action or proceeding if such settlement is
effected without the consent of such Holder (which consent shall not be
unreasonably withheld). Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company
or any such director, officer, Holder, underwriter or control Person and
shall survive the transfer of such securities by such Holder.
(c) Any Person seeking indemnification under this Section 3.8
will (i) give prompt notice to the indemnifying party of any claim with
respect to which it seeks indemnification (but the failure to give such
notice will not affect the right to indemnification hereunder, unless and
to the extent the indemnifying party is materially prejudiced by such
failure) and (ii) unless in such indemnified party's reasonable judgment a
conflict of interest may exist between such indemnified and indemnifying
parties with respect to such claim, permit such indemnifying party, and
other indemnifying parties similarly situated, jointly to assume the
defense of such claim with counsel reasonably satisfactory to the parties.
In the event that the indemnifying parties cannot mutually agree as to the
selection of counsel, each indemnifying party may retain separate counsel
to act on its behalf and at its expense. The indemnified party shall in all
events be entitled to participate in such defense at its expense through
its own counsel. If such defense is not assumed by the indemnifying party,
the indemnifying party will not be subject to any liability for any
settlement made without its consent (but such consent will not be
unreasonably withheld). No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from
all liability in respect of such claim or litigation. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel
for all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other
of such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and
expenses of such additional counsel.
(d) If for any reason the foregoing indemnification is
unavailable to any party or insufficient to hold it harmless as and to the
extent contemplated by the preceding paragraphs of this Section 3.8, then
each indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability
in such proportion as is appropriate to reflect the relative benefits
received by the applicable indemnifying party, on the one hand, and the
applicable indemnified party, as the case may be, on the other hand, and
also the relative fault of the applicable indemnifying party and the
applicable indemnified party, as the case may be, as well as any other
relevant equitable considerations.
3.9. REGISTRATION ON FORM S-3. After the date on which the Company has
effected a Public Offering, if (i) a Holder or Holders request in writing
(specifying that such request is being made pursuant to this Section 3.9) that
the Company file a registration statement on Form S-3 (or any successor form to
Form S-3 regardless of its designation) for a public offering of securities
having an aggregate value of not less than $1,000,000 and (ii) the Company is
entitled to use such form to register such securities, then the Company shall
file a Form S-3 with respect to such securities within ninety (90) days from the
date of such request, and shall use its best efforts to cause such registration
statement to become effective; PROVIDED, that the Company shall not be required
to effect such registration more frequently than once every six (6) months.
3.10. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holders and their Permitted Transferees the benefits of Rule
144 promulgated under the 1933 Act and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of the Company to the
public without registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times subsequent to ninety
(90) days after the effective date of the first registration statement
covering a Public Offering filed by the Company;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act; and
(c) furnish to any Holder forthwith upon request a written
statement by the Company that it has complied with the reporting
requirements of Rule 144 (at any time after ninety (90) days after the
effective date of said first registration statement filed by the Company),
and of the 1933 Act and the 1934 Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual
or quarterly
report of the Company, and such other reports and documents so filed by the
Company as may be reasonably requested in availing any Holder of any rule
or regulation of the SEC permitting the selling of any such securities
without registration.
3.11. NO INCONSISTENT AGREEMENTS. The Company represents and warrants that
it has not entered into, and covenants that it will not hereafter enter into,
any agreement with respect to the registration of its securities that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement without the prior written consent of a majority in interest of
the Holders.
3.12. STOCK SPLIT. If, on or after the receipt by the Company of a request
for registration of a public offering pursuant to Section 3.2, the proposed
managing underwriter or underwriters of such offering reasonably believes that
the number of shares to be registered is less than the minimum number necessary
for the success of such offering, the Company will promptly prepare and submit
to its Board of Directors, use its best efforts to cause to be adopted by its
Board of Directors and stockholders, and, if so adopted, file and cause to
become effective, an amendment to its certificate of incorporation so as to
cause each share of its outstanding Common Stock to be converted into such
number of shares of such Common Stock so that the number of shares of
Registrable Securities to be registered is equal to the minimum number which
such managing underwriter or underwriters reasonably believes is necessary for
the success of such offering. Each Stockholder, together with his or its
Permitted Transferees, hereby agrees to vote the shares of the Company's Common
Stock held by him or it in favor of adopting such amendment.
3.13. TIMING AND OTHER LIMITATIONS.
(a) No request shall be made with respect to any registration
pursuant to Section 3.2 within one hundred twenty (120) days immediately
following the effective date of any registration statement filed pursuant
to this Article III.
(b) If the Company shall furnish to the Holders of Registrable
Securities requesting a registration pursuant to Section 3.2 a certificate
signed by a majority of the Board of Directors stating that in the good
faith judgment of the Board of Directors, it would be seriously detrimental
to the Company or its stockholders for such registration statement to be
filed on or before the date filing would be required and it is therefore
advisable to defer the filing of such registration statement, then the
Company shall have the right to defer the filing of the registration
statement for a period of not more than one hundred twenty (120) days and
the request pursuant to Section 3.2 then made shall not be counted for
purposes of determining the number of registrations pursuant to Section
3.2; PROVIDED, HOWEVER, that the Company may not utilize such right more
than once in any twelve-month period.
3.14. LOCK-UP. In connection with any Public Offering of Shares, no holder
of Shares shall Transfer any Shares for a period beginning seven (7) days
immediately preceding the date upon which the Company in good faith believes
that the relevant registration statement shall become effective, and ending on
the one hundred eightieth (180th) day (or, at the discretion of the underwriter,
such lesser period) following the effectiveness of such registration statement
with respect to such Public Offering without the prior written consent of the
underwriters
managing the offering, and at the request of the underwriter, each holder of
Shares shall enter into an agreement to such effect with the underwriter;
PROVIDED, HOWEVER, that the provisions of this Section 3.14 shall not prohibit
any Permitted Transfers, provided that the Permitted Transferee agrees to be
bound by the terms of this Agreement, including this Section 3.14.
ARTICLE IV.
MISCELLANEOUS
4.1. APPOINTMENT OF THE MANAGEMENT PROXY. Each of the Management
Stockholders hereby appoints Xxxxxxxxx X. Xxxxx, XX (the "Management Proxy") as
the agent, proxy, and attorney-in-fact for the Management Stockholders
(including, without limitation, full power and authority to act on the
Management Stockholders' behalf) to take any action, should the Management Proxy
elect to do so in his sole discretion: (i) to vote on all matters to be voted on
under this Agreement, (ii) to receive all notices on behalf of each Management
Stockholder, (iii) to execute and deliver on behalf of the Management
Stockholders any amendment to this Agreement so long as such amendments shall
apply to all Management Stockholders and (vii) to take all other actions to be
taken by or on behalf of the Management Stockholders as a group and exercise any
and all rights which the Management Stockholders are permitted or required to do
or exercise under this Agreement other than exercise any rights with respect to
investment decisions set forth in Sections 2.1(c), 2.4, 2.6 or 3.3 hereof. Each
of the Management Stockholders hereby agrees not to assert any claim against,
and agrees to indemnify and hold harmless, the Management Proxy from and against
any and all losses incurred by the Management Proxy or any of his Affiliates,
partners, employees, agents, investment bankers or representatives, or any
Affiliate of any of the foregoing, relating to the Management Proxy's capacity
as the Management Proxy other than such claims or losses resulting from the
Management Proxy's gross negligence or willful misconduct. By execution hereof,
Xxxxxxxxx X. Xxxxx, XX hereby agrees to act as Management Proxy until such time
as a new Management Proxy is elected by the majority in interest of the
Management Stockholders.
4.2. REMEDIES. The parties to this Agreement acknowledge and agree that
the covenants of the Company and the Stockholders set forth in this Agreement
may be enforced in equity by a decree requiring specific performance. In the
event of a breach of any material provision of this Agreement, the aggrieved
party will be entitled to institute and prosecute a proceeding to enforce
specific performance of such provision, as well as to obtain damages for breach
of this Agreement. Without limiting the foregoing, if any dispute arises
concerning the Transfer of any of the Shares subject to this Agreement or
concerning any other provisions hereof or the obligations of the parties
hereunder, the parties to this Agreement agree that an injunction may be issued
in connection therewith (including, without limitation, restraining the Transfer
of such Shares or rescinding any such Transfer). Such remedies shall be
cumulative and non-exclusive and shall be in addition to any other rights and
remedies the parties may have under this Agreement or otherwise.
4.3. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement, together with
the Schedule hereto, set forth the entire understanding of the parties, and as
of the closing contemplated by the Stock Purchase Agreement supersedes all prior
agreements including, without limitation the Stock Acquisition Agreements, the
Stock Option Agreements and the
Existing Stock Purchase Agreements, and all other arrangements and
communications, whether oral or written, with respect to the subject matter
hereof. The Schedule may be amended to reflect changes in the composition of the
Stockholders as a result of Permitted Transfers or Transfers permitted under
Article II. Amendments to the Schedule reflecting Permitted Transfers or
Transfers permitted under Article II shall become effective when a copy of the
Agreement as executed by any new transferee is filed with the Company, except as
otherwise provided in Section 4.13. Any other amendments to, or the termination
of, this Agreement shall require the prior written consent of a majority of the
Stockholders. Without the consent of the Management Stockholders holding a
majority of the Shares held by the Management Stockholders, no amendment may be
made to Section 2.2. Notwithstanding any provisions to the contrary contained
herein, any party may waive any rights with respect to which such party is
entitled to benefits under this Agreement. No waiver of or consent to any
departure from any provision of this Agreement shall be effective unless signed
in writing by the party entitled to the benefit thereof.
4.4. SEVERABILITY. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, the invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if the invalid or
unenforceable provision were omitted. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid or unenforceable
in such jurisdiction, it shall, as to such jurisdiction, be so more narrowly
drawn, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
4.5. NOTICES. All notices or other communications required or permitted
to be given hereunder shall be in writing and shall be delivered in the manner
specified herein or, in the absence of such specification, shall be deemed to
have been duly given seven (7) days after mailing by certified mail, when
delivered by hand, upon confirmation of receipt by telecopy, or one (1) business
day after sending by overnight delivery service, to the respective addresses of
the parties set forth below:
(a) For notices and communications to the Company to:
Xxxxxx Holdings, Inc.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxxxx X. Xxxxx, XX
Facsimile: 000-000-0000
with a copy to:
Berkshire Partners LLC
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(b) for notices and communications to the Berkshire Stockholders,
to their respective addresses set forth in the Schedule, with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(c) for notices and communications to any Management
Stockholders, to their respective addresses set forth in the Schedule, with
a copy to:
The Xxxxxxx Xxxxxx Company
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Facsimile: 000-000-0000
(d) for notices and communications to any Other Stockholders, to
their respective addresses set forth in the Schedule.
By notice complying with the foregoing provisions of this Section 4.5, each
party shall have the right to change the mailing address for future notices and
communications to such party.
4.6. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective transferees,
successors and assigns; PROVIDED, HOWEVER, that no right or obligation under
this Agreement may be assigned except as expressly provided herein, it being
understood that the Company's rights hereunder may be assigned by the Company to
any corporation which is the surviving entity in a merger, consolidation or like
event involving the Company. No such assignment shall relieve an assignor of its
obligations hereunder.
4.7. GOVERNING LAW. This Agreement shall be governed by the law of The
Commonwealth of
Massachusetts (regardless of the laws that might otherwise
govern under applicable
Massachusetts principles of conflicts of law) as to all
matters, including but not limited to matters of validity, construction, effect,
performance and remedies.
4.8. TERMINATION. Without affecting any other provision of this Agreement
requiring termination of any rights in favor of any Stockholder or any
transferee of Shares, the provisions
of Article II shall terminate as to such Stockholder or transferee, when,
pursuant to and in accordance with this Agreement, such Stockholder or
transferee, as the case may be, no longer owns any Shares, Performance Options,
Rollover Options or Time Options; PROVIDED, that termination pursuant to this
Section 4.8. shall only occur in respect of a Stockholder after all Permitted
Transferees in respect thereof also no longer own any Shares. Notwithstanding
the foregoing, Article II shall terminate upon the earlier of a Change in
Control or the consummation of the first Public Offering; PROVIDED, that the
Company shall be obligated to consummate the purchase of any vested Time
Options, Rollover Options and vested Performance Options which have been called
pursuant to Section 2.2 prior to such termination, but have not otherwise been
paid for as of such date.
4.9. RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to Shares, to any
and all shares of capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which
may be issued in respect of, in exchange for, or in substitution of the Shares,
by reason of a stock dividend, stock split, stock issuance, reverse stock split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise.
4.10. ACTION NECESSARY TO EFFECTUATE THE AGREEMENT. The parties hereto
agree to take or cause to be taken all such corporate and other action as may be
necessary to effect the intent and purposes of this Agreement.
4.11. PURCHASE FOR INVESTMENT; LEGEND ON CERTIFICATE. Each of the parties
acknowledges that all of the Shares held by such party are being (or have been)
acquired for investment and not with a view to the distribution thereof and that
no transfer, hypothecation or assignment of Shares may be made except in
compliance with applicable federal and state securities laws. All the
certificates of Shares which are now or hereafter owned by the Stockholders and
which are subject to the terms of this Agreement shall have endorsed in writing,
stamped or printed, thereon the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS, INCLUDING CERTAIN
RESTRICTIONS ON TRANSFER, OF A
STOCKHOLDERS AGREEMENT
DATED AS OF AUGUST 15, 2001, AS AMENDED FROM TIME TO TIME,
AND NONE OF SUCH SECURITIES, OR ANY INTEREST THEREIN,
SHALL BE TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF EXCEPT AS PROVIDED IN THAT AGREEMENT. A COPY
OF THE
STOCKHOLDERS AGREEMENT IS ON FILE WITH THE CLERK OF
THE COMPANY AND WILL BE MAILED TO ANY PROPERLY INTERESTED
PERSON WITHOUT CHARGE WITHIN FIVE (5) BUSINESS DAYS AFTER
RECEIPT OF A WRITTEN REQUEST."
All shares shall also bear all legends required by federal and state
securities laws.
4.12. EFFECTIVENESS OF TRANSFERS. All Shares transferred by a Stockholder
(other than pursuant to an effective registration statement under the 1933 Act
or pursuant to a Rule 144 transaction) shall, except as otherwise expressly
stated herein, be held by the transferee thereof subject to this Agreement. Such
transferee shall, except as otherwise expressly stated herein, have all the
rights and be subject to all of the obligations of a Stockholder under this
Agreement (as though such party had so agreed pursuant to Section 4.13)
automatically and without requiring any further act by such transferee or by any
parties to this Agreement. Without affecting the preceding sentence, if such
transferee is not a Stockholder on the date of such transfer, then such
transferee, as a condition to such transfer, shall confirm such transferee's
obligations hereunder in accordance with Section 4.13. No Shares shall be
transferred on the Company's books and records, and no transfer of Shares shall
be otherwise effective, unless any such transfer is made in accordance with the
terms and conditions of this Agreement, and the Company is hereby authorized by
all of the Stockholders to enter appropriate stop transfer notations on its
transfer records to give effect to this Agreement.
4.13. OTHER STOCKHOLDERS. Subject to the restrictions on transfers of
Shares contained herein, any Person who is not already a Stockholder acquiring
Shares, shall, on or before the transfer or issuance to it of Shares, sign a
counterpart or joinder to this Agreement in form reasonably satisfactory to the
Company and shall thereby become a party to this Agreement to be bound hereunder
as (i) a Berkshire Stockholder if a transferee (other than the Company) of a
Berkshire Stockholder, (ii) a Management Stockholder if a transferee (other than
the Company) of a Management Stockholder or (iii) an Other Stockholder if such
transferee (other than the Company) does not fall within clause (i) or (ii)
above. Each such additional Stockholder shall be listed on the Schedule, as
amended from time to time.
4.14. NO WAIVER. No course of dealing and no delay on the part of any
party hereto in exercising any right, power or remedy conferred by this
Agreement shall operate as waiver thereof or otherwise prejudice such party's
rights, powers and remedies. No single or partial exercise of any rights, powers
or remedies conferred by this Agreement shall preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
4.15. COSTS AND EXPENSES. Each party shall pay its own costs and expenses
incurred in connection with this Agreement, and any and all other documents
furnished pursuant hereto or in connection herewith.
4.16. COUNTERPART. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument, and all signatures need not appear
on any one counterpart.
4.17. HEADINGS. All headings and captions in this Agreement are for
purposes of reference only and shall not be construed to limit or affect the
substance of this Agreement.
4.18. THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended or
shall be construed to entitle any Person other than the Company and the
Stockholders to any claim, cause of action, right or remedy of any kind.
4.19. CONSENT TO JURISDICTION. The Company and each of the Stockholders,
by its, his or her execution hereof, (i) hereby irrevocably submit to the
exclusive jurisdiction of the state courts in The Commonwealth of
Massachusetts
for the purposes of any claim or action arising out of or based upon this
Agreement or relating to the subject matter hereof, (ii) hereby waive, to the
extent not prohibited by applicable law, and agree not to assert by way of
motion, as a defense or otherwise, in any such claim or action, any claim that
it or he is not subject personally to the jurisdiction of the above-named
courts, that its, his or her property is exempt or immune from attachment or
execution, that any such proceeding brought in the above-named court is improper
or that this Agreement or the subject matter hereof may not be enforced in or by
such court and (iii) hereby agree not to commence any claim or action arising
out of or based upon this Agreement or relating to the subject matter hereof
other than before the above-named courts nor to make any motion or take any
other action seeking or intending to cause the transfer or removal of any such
claim or action to any court other than the above-named courts whether on the
grounds of inconvenient forum or otherwise. The Company and each of the
Stockholders hereby consent to service of process in any such proceeding, and
agree that service of process by registered or certified mail, return receipt
requested, at its address specified pursuant to Section 4.5 is reasonably
calculated to give actual notice.
4.20. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT
WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF
ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS
CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.
EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES
HERETO THAT THIS SECTION 4.20 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY
ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 4.20 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
IN WITNESS WHEREOF, each of the stockholders of Xxxxxx Holdings, Inc. has
duly executed this
Stockholders Agreement (or caused this
Stockholders Agreement
to be executed on its behalf by its officer or representative thereunto duly
authorized) as of the date first above written.
[Signature pages on file with the Company]
