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EXHIBIT 10.12
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Stockholders Agreement") dated
as of October 27, 1995, is entered into by and among Xxxxxxxx Holdings, Inc., a
Delaware corporation (the "Company"), and the securityholders listed on the
signature pages hereof (the "Holders").
In consideration of the premises, mutual covenants and agreements
hereinafter contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
"ACCREDITED INVESTOR" means an "Accredited Investor," as defined in
Regulation D, or any successor rule then in effect.
"ACCREDITED OFFEREE" shall have the meaning provided in Section 4.1
hereof.
"ADVICE" shall have the meaning provided in Section 3.5 hereof.
"AFFILIATE" means, with respect to any Person, any Person who, directly
or indirectly, controls, is controlled by or is under common control with that
Person.
"AFFILIATED SUCCESSOR" shall have the meaning provided in Section 4.1
hereof.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"COMMON STOCK" means shares of the Common Stock, $.01 par value per
share, of the Company, and any capital stock into which such Common Stock
thereafter may be changed.
"COMMON STOCK EQUIVALENTS" means, without duplication with any other
Common Stock or Common Stock Equivalents, any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or
indebtedness, or other rights, exercisable for or convertible or exchangeable
into, directly or indirectly, Common Stock of the Company and
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securities convertible or exchangeable into Common Stock of the Company,
whether at the time of issuance or upon the passage of time or the occurrence
of some future event.
"COMPANY" shall have the meaning set forth in the introductory paragraph
hereof.
"CO-SELLER" shall have the meaning set forth in Section 4.2 hereof.
"DEMAND REGISTRATION" means a registration effected pursuant to a demand
registration right which, by its terms, does not permit the inclusion of shares
of parties other than the holders of such demand registration rights.
"ENTITLED HOLDERS" shall have the meaning provided in Section 3.1
hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"EXCLUDED HOLDERS" mean Xxxxxx X. Xxxxx and Xxxxxxxx X. XxXxxxxx.
"FULLY-DILUTED COMMON STOCK" means, at any time, the then outstanding
Common Stock of the Company plus (without duplication) all shares of Common
Stock issuable, whether at such time or upon the passage of time or the
occurrence of future events, upon the exercise, conversion, or exchange of all
then-outstanding Common Stock Equivalents.
"HMTF" means Hicks, Muse, Xxxx & Xxxxx Equity Fund II, L.P., a Delaware
limited partnership.
"HOLDER" means (i) a securityholder listed on the signature page hereof
and (ii) any direct or indirect transferee of any such securityholder.
"LEGAL HOLIDAY" shall have the meaning provided in Section 8.4 hereof.
"NASD" shall have the meaning provided in Section 3.6 hereof.
"OFFERED SECURITIES" shall have the meaning provided in Section 4.1
hereof.
"OFFER NOTICE" shall have the meaning provided in Section 4.1 hereof.
"PARTICIPATION OFFER" shall have the meaning provided in Section 4.3
hereof.
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"PERSON" or "PERSON" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"PREEMPTIVE RIGHTS OFFER" shall have the meaning provided in Section 4.1
hereof.
"PREEMPTIVE RIGHTS TRANSACTION" shall have the meaning provided in
Section 4.1 hereof.
"REGISTRABLE SHARES" means at any time the Common Stock of the Company
owned by HMTF and its Affiliates or the Holders, whether owned on the date
hereof or acquired hereafter; provided, however, that Registrable Shares shall
not include any shares (i) the sale of which has been registered pursuant to
the Securities Act and which shares have been sold pursuant to such
registration, or (ii) which have been sold to the public pursuant to Rule 144
or 144A of the SEC under the Securities Act.
"REGISTRATION EXPENSES" shall have the meaning provided in Section 3.6
hereof.
"REGULATION D" means Regulation D promulgated under the Securities Act
by the SEC.
"REQUIRED HOLDERS" means Holders who then own beneficially more than 66-
2/3% of the aggregate number of shares of Common Stock subject to this
Stockholder Agreement.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Common Stock.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SELLER AFFILIATES" shall have the meaning provided in Section 3.7
hereof.
"SIGNIFICANT SALE" shall have the meaning provided in Section 4.2
hereof.
"STOCKHOLDERS AGREEMENT" means this Stockholders Agreement, as such from
time to time may be amended.
"SUBSIDIARY" of any Person means (i) a corporation a majority of whose
outstanding shares of capital stock or other equity interests with voting
power, under ordinary circumstances, to elect directors, is at the time,
directly or indirectly, owned by such Person, by one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person, and
(ii) any other Person (other than a corporation) in which such Person, a
subsidiary of such
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Person or such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has (x) at least a majority
ownership interest or (y) the power to elect or direct the election of the
directors or other governing body of such Person.
"SUSPENSION NOTICE" shall have the meaning provided in Section 3.5
hereof.
"TRANSFER" means any disposition of any Security or any interest therein
that would constitute a "sale" thereof within the meaning of the Securities
Act.
"TRANSFER NOTICE" shall have the meaning provided in Section 5.3 hereof.
SECTION 1.2 Rules of Construction.
Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words
in the plural include the singular;
(4) provisions apply to successive events and
transactions; and
(5) "herein," "hereof" and other words of similar
import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE 2
MANAGEMENT OF THE COMPANY AND CERTAIN ACTIVITIES
SECTION 2.1 Board of Directors.
2.1.1 Board Representation. Subject to Section 2.1.3, The Board of
Directors of the Company shall consist of the following individuals: (i) four
individuals (the "HMTF Nominees") designated by the HMTF and (ii) one
individual (the "Xxxxx Nominee", and together with the HMTF Nominees, the
"Nominees") designated by Xxxxxx X. Xxxxx. Each Holder shall vote his or its
shares of Common Stock at any regular or special meeting of stockholders of the
Company or in any written consent executed in lieu of such a meeting of
stockholders and shall take all
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other actions necessary to give effect to the agreements contained in this
Agreement (including without limitation the election of the directors named in
the preceding sentence) and to ensure that the certificate of incorporation and
bylaws as in effect immediately following the date hereof do not, at any time
thereafter, conflict in any respect with the provisions of this Agreement. In
order to effectuate the provisions of this Section 2, each Holder hereby agrees
that when any action or vote is required to be taken by such Holder pursuant to
this Agreement, such Holder shall use his or its best efforts to call, or cause
the appropriate officers and directors of the Company to call, a special or
annual meeting of stockholders of the Company, as the case may be, or execute
or cause to be executed a consent in writing in lieu of any such meetings
pursuant to Section 228(a) of the General Corporation Law of the State of
Delaware.
2.1.2 Vacancies. If, prior to his election to the Board of Directors
of the Company pursuant to Section 2.1.1 hereof, any Nominee shall be unable or
unwilling to serve as a director of the Company, the Holder or Holders who
nominated any such Nominee shall be entitled to nominate a replacement who
shall then be a Nominee for purposes of this Section 2. If, following an
election to the Board of Directors of the Company pursuant to Section 2.1.1
hereof, any Nominee shall resign or be removed or be unable to serve for any
reason prior to the expiration of his term as a director of the Company, the
Holder or Holders who nominated such Nominee shall, within 30 days of such
event, notify the Board of Directors of the Company in writing of a replacement
Nominee, and either (i) the Holders shall vote their shares of Common Stock, at
any regular or special meeting called for the purpose of filling positions on
the Board of Directors of the Company or in any written consent executed in
lieu of such a meeting of stockholders, and shall take all such other actions
necessary to ensure the election to the Board of Directors of the Company of
such replacement Nominee to fill the unexpired term of the Nominee who such new
Nominee is replacing or (ii) the Board of Directors shall elect such
replacement Nominee to fill the unexpired term of the Nominee who such new
Nominee is replacing. If, HMTF request that any director nominated by the HMTF
pursuant to Section 2.1.1 or, Xxxxx requests that any director nominated by
Xxxxx pursuant to Section 2.1.1, be removed (with or without cause) by written
notice thereof to the Company, then in either such case each of the Company and
the Holders shall vote all its or his capital stock in favor of such removal
upon such request.
2.1.3 Termination of Rights. The right of HMTF to designate directors
under Section 2.1.1, and the obligation of the Holders to vote their shares as
provided herein, shall terminate upon the first to occur of (i) the termination
or expiration of this Stockholders Agreement or this Article 2, (ii) such time
as HMTF elects in writing to terminate its rights under this Article 2, or
(iii) such time as HMTF, its Affiliates, and employees of it and its Affiliates
cease to own any shares of Common Stock. The right of Xxxxx to designate
directors under Section 2.1.1, and the obligation of the Holders to vote their
shares as provided herein, shall terminate upon the first to
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occur of (i) the termination or expiration of this Stockholders Agreement or
this Article 2, (ii) such time as Xxxxx elects in writing to terminate its
rights under this Article 2, or (iii) such time as Xxxxx, ceases to own any
shares of Common Stock.
2.1.4 Costs and Expenses. The Company will pay all reasonable out-of-
pocket expenses incurred by the designees of HMTF and Xxxxx in connection with
their participation in meetings of the Board of Directors (and committees
thereof) of the Company and the Boards of Directors (and committees thereof) of
the Subsidiaries of the Company.
SECTION 2.2 Voting of Capital Stock.
To the extent any Holder owns shares of any class or series of capital
stock of the Company or any Subsidiary of the Company which it may vote on any
particular matter which comes before such corporation's stockholders, as a
class or series separate from the common stock of such corporation ordinarily
entitled to vote for the election of directors, such Holder shall vote all such
shares on such matter in such separate class or series vote as holders of a
majority of the outstanding shares of common stock of such corporation vote
thereon; provided, however, that such Holder may nevertheless vote such shares
as a separate class or series without regard to the provisions of this Section
2.2 in respect of (a) amendments to the certificate of incorporation of such
corporation, or the certificate of designation which created such class or
series, which change the provisions thereof expressly applicable to such
separate class or series, and (b) any matter as to which such class or series
is expressly entitled to vote as a separate class or series pursuant to such
corporation's certificate of incorporation or the certificate of designation
which created such class or series; provided further, however, that any
statement in such certificate of incorporation or certificate of designation
that such class or series may vote as a separate class or series "as required
by law" or similar language shall not permit such class or series to be voted
without regard to the provisions of this Section 2.2.
SECTION 2.3 Other Activities of the Holders; Fiduciary Duties.
It is understood and accepted that the Holders and their Affiliates have
interests in other business ventures which may be in conflict with the
activities of the Company and its Subsidiaries and that, subject to applicable
law, nothing in this Stockholders Agreement shall limit the current or future
business activities of the Holders whether or not such activities are
competitive with those of the Company and its Subsidiaries. Nothing in this
Agreement, express or implied, shall relieve any officer or director of the
Company or any of its Subsidiaries, or any Holder, of any fiduciary or other
duties or obligations they may have to the Company's stockholders.
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SECTION 2.4 Grant of Proxy.
Each Holder (other than HMTF) hereby constitutes and appoints HMTF with
full power of substitution, as its true and lawful proxy and attorney-in-fact
to vote any and all shares of any class or series of capital stock of the
Company or any Subsidiary of the Company held by such Holder in accordance with
the provisions of Section 2.1 and 2.2 of this Stockholders Agreement. Each
Holder acknowledges that the proxy granted hereby is irrevocable, being coupled
with an interest, and that such proxy will continue until the termination of
such Holder's obligation to vote any shares in accordance with this Article 2.
ARTICLE 3
PIGGYBACK REGISTRATIONS
SECTION 3.1 Right to Piggyback.
Each time the Company proposes to register any of its Common Stock
(other than a Demand Registration) under the Securities Act for cash sale
through an underwriter or underwriters (other than through a holder of Common
Stock who may be deemed a statutory underwriter) and the registration form to
be used may be used for the registration of Registrable Shares, the Company
shall give prompt written notice to the Holders of Registrable Shares of its
intention to effect such a registration (which notice shall be given not less
than 10 days prior to the date the registration statement is filed) and such
notice shall offer such Holders (the "Entitled Holders") the opportunity to
have any or all of the Registrable Shares included in such registration
statement, subject to the limitations contained in Section 3.2. The Entitled
Holders desiring to have their Registrable Shares registered under this Article
3 will so advise the Company in writing within 20 days after the date of
receipt of such notice from the Company. Subject to Section 3.2 below, the
Company shall include in such registration statement all such Registrable
Shares so requested to be included therein; provided, however, that the Company
may at any time withdraw or cease proceeding with any such registration if it
shall at the same time withdraw or cease proceeding with the registration of
all other shares of Common Stock originally proposed to be registered.
SECTION 3.2 Priority on Registrations.
If the managing underwriter advises the Company in writing that the
number of shares of Common Stock requested to be included in the registration
by all Persons (including the Company) exceeds the number of shares of Common
Stock which can be sold in such offering, the Company will be obligated to
include in such registration only (i) first, any and all shares of Common Stock
for sale by the Company, and (ii) second, pro rata among the Registrable Shares
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and any other shares of Common Stock requested to be included pursuant to any
other registration rights that may have been, or may hereafter be, granted by
the Company (on the basis of the total number of shares of Common Stock that
each holder has requested to be registered). No Person may participate in any
registration hereunder unless such Person (x) agrees to sell such Person's
Registrable Shares on the basis provided in any underwriting arrangements
approved by the Company and (y) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, and other documents
required under the terms of such underwriting arrangements.
SECTION 3.3 Holdback Agreement.
Unless the managing underwriter otherwise agrees, each of HMTF and the
Entitled Holders agrees not to effect any public sale or private offer or
distribution of any Common Stock or Common Stock Equivalents during the ten
business days prior to any underwritten registration and during such time
period after any underwritten registration (not to exceed 180 days) (except, if
applicable, as part of such underwritten registration) as HMTF and the managing
underwriter may agree.
SECTION 3.4 Registration Procedures.
Whenever the Entitled Holders have requested that any Registrable Shares
be registered pursuant to this Stockholders Agreement, the Company will use its
commercially reasonable efforts to effect the registration and the sale of such
Registrable Shares in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on
any appropriate form under the Securities Act with respect to such
Registrable Shares and use its commercially reasonable efforts to cause
such registration statement to become effective;
(b) prepare and file with the SEC such amendments, post-
effective amendments, and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep
such registration statement effective for a period of not less than 180
days (or such lesser period as is necessary for the underwriters in an
underwritten offering to sell unsold allotments) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of
such registration statement, each
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amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus), and such
other documents as such seller or underwriters may reasonably request in
order to facilitate the disposition of the Registrable Shares owned by
such seller or the sale of such securities by such underwriters;
(d) use its commercially reasonable efforts to register or
qualify such Registrable Shares under such other securities or blue sky
laws of such jurisdictions as the managing underwriter reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate
the disposition of the Registrable Shares owned by such seller in such
jurisdictions (provided, however, that the Company will not be required
to (A) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph or
(B) consent to general service of process in any such jurisdiction);
(e) notify each seller of Registrable Shares promptly after it
shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming
a part of such registration statement has been filed;
(f) notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such
registration statement or prospectus or for additional information;
(g) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the
opinion of counsel for the Company or the managing underwriter, is
required in connection with the distribution of the Registrable Shares;
(h) enter into such agreements (including underwriting
agreements in the managing underwriter's customary form) as are
customary in connection with an underwritten registration; and
(i) advise each seller of such Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness of
such registration statement or the initiation or threatening of any
proceeding for such purpose and promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued.
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SECTION 3.5 Suspension of Dispositions.
Each Entitled Holder agrees by acquisition of any Registrable Shares
that, upon receipt of any notice (a "Suspension Notice") from the Company of
the happening of any event of the kind which, in the opinion of the Company,
requires the amendment or supplement of any prospectus, such Entitled Holder
will forthwith discontinue disposition of Registrable Shares until such
Entitled Holder's receipt of the copies of the supplemented or amended
prospectus, or until it is advised in writing (the "Advice") by the Company
that the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus, and, if so directed by the Company, such Holder will deliver to the
Company all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of registration statements
set forth in Section 3.4(b) hereof shall be extended by the number of days
during the period from and including the date of the giving of the Suspension
Notice to and including the date when each seller of Registrable Shares covered
by such registration statement shall have received the copies of the
supplemented or amended prospectus or the Advice.
SECTION 3.6 Registration Expenses.
All expenses incident to the Company's performance of or compliance with
this Section 3 including, without limitation, all registration and filing fees,
all fees and expenses associated with filings required to be made with the
National Association of Securities Dealers, Inc. ("NASD") (including, if
applicable, the fees and expenses of any "qualified independent underwriter" as
such term is defined in Schedule E of the By-Laws of the NASD, and of its
counsel), as may be required by the rules and regulations of the NASD, fees and
expenses of compliance with securities or "blue sky" laws (including reasonable
fees and disbursements of counsel in connection with "blue sky" qualifications
of the Registrable Shares), rating agency fees, printing expenses (including
expenses of printing certificates for the Registrable Shares in a form eligible
for deposit with Depositary Trust Company and of printing prospectuses if the
printing of prospectuses is requested by a holder of Registrable Shares),
messenger and delivery expenses, fees and expenses of counsel for the Company
and its independent certified public accountants (including the expenses of any
special audit or "cold comfort" letters required by or incident to such
performance), securities acts liability insurance (if the Company elects to
obtain such insurance), the fees and expenses of any special experts retained
by the Company in connection with such registration, and fees and expenses of
other persons retained by the Company (all such expenses being herein called
"Registration Expenses") will be borne by the Company whether or not any
registration statement becomes effective; provided that in no event shall
Registration Expenses include any underwriting discounts, commissions, or fees
attributable to the sale of the
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Registrable Shares or any counsel, accountants, or other persons retained or
employed by the Entitled Holders.
SECTION 3.7 Indemnification.
(a) The Company agrees to indemnify and reimburse, to the
fullest extent permitted by law, each seller of Registrable Shares, and each of
its employees, advisors, agents, representatives, partners, officers, and
directors and each Person who controls such seller (within the meaning of the
Securities Act or the Exchange Act) (collectively, the "Seller Affiliates") (A)
against all losses, claims, damages, liabilities and expenses, joint or several
(including, without limitation, attorneys' fees except as limited by
subparagraph (c) below) arising out of or caused by any untrue or alleged
untrue statement of a material fact contained in any registration statement,
prospectus, or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, (B)
against any and all loss, liability, claim, damage, and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, and (C) against any and all costs and expenses
(including reasonable fees and disbursements of counsel and other agents) as
may be reasonably incurred in investigating, preparing, or defending against
any litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, to the extent that any such expense or cost is
not paid under subparagraph (A) or (B) above; except insofar as the same are
made in reliance upon and in strict conformity with information furnished in
writing to the Company by such seller or any Seller Affiliate for use therein
or by such seller or any Seller Affiliate's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such seller or Seller Affiliate with a
sufficient number of copies of the same. The reimbursements required by this
Section 3.7(a) will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
(b) In connection with any registration statement in which a
seller of Registrable Shares is participating, each such seller will furnish to
the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the fullest extent permitted by law, each such seller
will indemnify the Company, its directors, and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities, and expenses (including, without
limitation, attorneys' fees except as limited by subparagraph (c) below)
resulting from any untrue statement or alleged untrue statement of a material
fact contained in the registration statement, prospectus, or preliminary
prospectus or any
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amendment thereof or supplement thereto or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or alleged untrue statement, or omission or alleged omission, is
contained in any information or affidavit so furnished in writing by such
seller or any of its Seller Affiliates; provided that the obligation to
indemnify will be several, not joint and several, among such sellers of
Registrable Shares, and the liability of each such seller of Registrable Shares
will be in proportion to, and provided further that such liability will be
limited to, the net amount received by such seller from the sale of Registrable
Shares pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (A)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give such
notice shall not limit the rights of such Person) and (B) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however, that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (X)
the indemnifying party has agreed to pay such fees or expenses, or (Y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is
assumed, the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). 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.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 3.7(a) or Section 3.7(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, liabilities, or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
such indemnifying party or indemnified party, and the parties'
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relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section 3.7(d) were
determined by pro rata allocation (even if the Entitled Holders or any
underwriters or all of them were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in this Section 3.7(d). The amount paid or payable
by an indemnified party as result of the losses, claims, damages, liabilities,
or expenses (or actions in respect thereof) referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or, except as provided in
Section 3.7(c), defending any such action or claim. Notwithstanding the
provisions of this Section 3.7(d), no Entitled Holder shall be required to
contribute an amount greater than the dollar amount of the proceeds received by
such Entitled Holder with respect to the sale of any Registrable Shares. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Entitled Holders'
obligations in this Section 3.7(d) to contribute shall be several in proportion
to the amount of Registrable Shares registered by them and not joint.
(e) The indemnification and contribution provided for under
this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director, or controlling Person of such indemnified party and will survive the
transfer of securities. The Company also agrees to make such provisions as are
reasonably requested by any indemnified party for contribution to such party in
the event the Company's indemnification is unavailable for any reason.
ARTICLE 4
TRANSFERS OF SECURITIES
SECTION 4.1 Preemptive Rights.
4.1.1 Rights to Participate in Future Sales. In case the Company or
any Affiliated Successor (as hereinafter defined) proposes to issue or sell any
shares of Common Stock or Common Stock Equivalents (the "Offered Securities"),
the Company shall, no later than twenty days prior to the consummation of such
transaction (a "Preemptive Rights Transaction"), give notice in writing (the
"Offer Notice") to each Holder of such Preemptive Rights Transaction. The
Offer Notice shall describe the proposed Preemptive Rights Transaction,
identify the proposed purchaser, and contain an offer (the "Preemptive Rights
Offer") to sell to each Holder who certifies (to the reasonable satisfaction of
the Company) that such Holder is an Accredited Investor (an "Accredited
Offeree"), at the same price and for the same consideration to be paid
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by the proposed purchaser, all or part of such Accredited Offeree's pro rata
portion of the Offered Securities (which shall be the percentage ownership of
the Fully-Diluted Common Stock held by such Holder, excluding, for the purposes
of such calculation, any shares of Common Stock issued or issuable upon
exercise of any Common Stock Equivalents granted pursuant to any employee,
officer or director benefit plan or arrangement). As used herein, the term
"Affiliated Successor" means a successor entity to the Company (whether by
merger, consolidation, reorganization, or otherwise) in which HMTF owns at
least the same percentage of the fully-diluted common stock of such entity
(after giving effect to the merger, consolidation, reorganization, or other
transaction) as HMTF owns of the Fully-Diluted Common Stock of the Company. If
any such Holder fails to accept such offer by written notice fifteen days after
its receipt of the Offer Notice, the Company or such Affiliated Successor may
proceed with the proposed issue or sale of the Offered Securities, free of any
right on the part of any Holder under this Section 4.1.1 in respect thereof.
4.1.2 Exceptions to Preemptive Rights. This Section 4.1 shall not
apply to (i) issuances or sales of Common Stock or Common Stock Equivalents to
employees, officers, and/or directors of the Company and/or any of its
Subsidiaries pursuant to employee benefit or similar plans or arrangements of
the Company and/or its Subsidiaries, (ii) issuances or sales of Common Stock or
Common Stock Equivalents upon exercise of any Common Stock Equivalent which,
when issued, was subject to or exempt from the preemptive rights under this
Section 4.1, (iii) securities distributed or set aside ratably to all holders
of Common Stock and Common Stock Equivalents (or any class or series thereof)
on a per share equivalent basis, (iv) issuances or sales of Common Stock or
Common Stock Equivalents pursuant to a registered underwritten public offering,
a merger of the Company or a subsidiary of the Company into or with another
entity or an acquisition by the Company of a subsidiary of the Company or
another business or corporation or (v) issuances or sales of Common Stock or
Common Stock Equivalence in conjunction with the private placement or public
sale of any class or series of the preferred stock of the Company ("Preferred
Stock"), and rights, warrants, options, convertible securities or convertible
indebtedness, exchangeable securities or exchangeable indebtedness, or other
rights exercisable for or convertible or exchangeable into, directly or
indirectly, Preferred Stock, or indebtedness of the Company. In the event of
any issuances or sales of Common Stock or Common Stock Equivalents as a unit
with any other security of the Company or its Subsidiaries, the preemptive
rights under this Section shall be applicable to the entire unit rather than
only the Common Stock or Common Stock Equivalent included in the unit.
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SECTION 4.2 Drag Along Rights.
4.2.1 Applicability. In connection with any Transfer by HMTF or any of
its Affiliates of shares of Common Stock representing more than 10% of the
Fully-Diluted Common Stock (a "Significant Sale"), HMTF shall have the right to
require each non-selling Holder (each, a "Co-Seller") to Transfer a portion of
its Common Stock which represents the same percentage of such Fully-Diluted
Common Stock held by such Co-Seller as the shares being disposed of by HMTF and
its Affiliates represent of the Fully-Diluted Common Stock held by HMTF and its
Affiliates. (For example, if HMTF and its Affiliates are selling 50% of their
Fully-Diluted Common Stock position, each Co-Seller shall be required to sell
50% of its Fully-Diluted Common Stock position.) All Common Stock Transferred
by Holders pursuant to this Section 4.2 shall be sold at the same price and
otherwise treated identically with the Common Stock being sold by HMTF and its
Affiliates in all respects; provided, that the Co-Seller shall not be required
to make any representations or warranties in connection with such Transfer
other than representations and warranties as to (i) such Co-Seller's ownership
of his or Common Stock to be Transferred free and clear of all liens, claims
and encumbrances, (ii) such Co-Seller's power and authority to effect such
transfer, and (iii) such matters pertaining to compliance with securities laws
as the transferee may reasonably require except that the transferee may not
require that each Transferring Co-Seller be an Accredited Investor.
4.2.2 Notice of Significant Sale. HMTF shall give each Co-Seller at
least 30 days' prior written notice of any Significant Sale as to which HMTF
intends to exercise its rights under Section 4.2. If HMTF elects to exercise
its rights under Section 4.2, the Co-Sellers shall take such actions as may be
reasonably required and otherwise cooperate in good faith with HMTF in
connection with consummating the Significant Sale (including, without
limitation, the voting of any Common Stock or other voting capital stock of the
Company to approve such Significant Sale). At the closing of such Significant
Sale, each Co-Seller shall deliver certificates for all shares of Common Stock
to be sold by such Co-Seller, duly endorsed for transfer, with the signature
guaranteed, to the purchaser against payment of the appropriate purchase price.
SECTION 4.3 Tag Along Rights.
4.3.1 Applicability. In the event HMTF or any of its Affiliates
desires to effect a Significant Sale and it does not elect to exercise its
rights under Section 4.2 hereof, then at least 30 days prior to the closing of
such Significant Sale, HMTF shall make an offer (the "Participation Offer") to
each Co-Seller to include in the proposed Significant Sale a portion of its
Common Stock which represent the same percentage of such Co-Seller's Fully-
Diluted Common Stock as the shares being sold by HMTF and its Affiliates
represent of their Fully-Diluted Common Stock; provided that, if the
consideration to be received by HMTF and its Affiliates includes any
securities, only Co-Sellers who have certified to the reasonable satisfaction
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of HMTF that they are Accredited Investors and, in any event, the Excluded
Holders, shall be entitled to participate in such transfer, unless the
transferee consents otherwise.
4.3.2 Terms of Participation Offer. The Participation Offer shall
describe the terms and conditions of the proposed Significant Sale and shall be
conditioned upon (i) the consummation of the transactions contemplated in the
Participation Offer with the transferee named therein, and (ii) each Co-
Seller's execution and delivery of all agreements and other documents as HMTF
is required to execute and deliver in connection with such Significant Sale
(provided that the Co-Seller shall not be required to make any representations
or warranties in connection with such sale or transfer other than
representations and warranties as to (A) such Co-Seller's ownership of his
Common Stock to be sold or transferred free and clear of all liens, claims, and
encumbrances, (B) such Co-Seller's power and authority to effect such transfer
and (C) such matters pertaining to compliance with securities laws as the
transferee may reasonably require). If any Co-Seller shall accept the
Participation Offer, HMTF shall reduce, to the extent necessary, the number of
shares of Common Stock it otherwise would have sold in the proposed transfer so
as to permit those Co-Sellers who have accepted the Participation Offer to sell
the number of shares of Common Stock that they are entitled to sell under this
Section 4.3, and HMTF and such Co-Sellers shall transfer the number of shares
Common Stock specified in the Participation Offer to the proposed transferee in
accordance with the terms of such transfer as set forth in the Participation
Offer.
SECTION 4.4 Certain Events Not Deemed Transfers.
In no event shall any exchange, reclassification, or other conversion of
shares into any cash, securities, or other property pursuant to a merger or
consolidation of the Company or any Subsidiary with, or any sale or transfer by
the Company or any Subsidiary of all or substantially all its assets to, any
Person constitute a Significant Sale of shares of Common Stock by HMTF for
purposes of Section 4.2 or 4.3. In addition, Sections 4.2 and 4.3 hereof shall
not apply to any transfer, sale, or disposition of shares of Common Stock
solely among HMTF and its Affiliates.
SECTION 4.5 Transfer and Exchange.
When Securities are presented to the Company with a request to register
the transfer of such Securities or to exchange such Securities for Securities
of other authorized denominations, the Company shall register the transfer or
make the exchange as requested if the requirements of this Stockholders
Agreement for such transaction are met; provided, however, that the Securities
surrendered for transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Company, duly
executed by the Holder thereof or its attorney and duly authorized in writing.
No service charge shall be made for any
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registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith.
SECTION 4.6 Replacement Securities.
If a mutilated Security is surrendered to the Company or if the Holder
of a Security claims and submits an affidavit or other evidence, satisfactory
to the Company, to the effect that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue a replacement Security if the
Company's requirements are met. If required by the Company, such
Securityholder must provide an indemnity bond, or other form of indemnity,
sufficient in the judgment of the Company to protect the Company against any
loss which may be suffered. The Company may charge such Securityholder for its
reasonable out-of-pocket expenses in replacing a Security which has been
mutilated, lost, destroyed or wrongfully taken.
ARTICLE 5
LIMITATION ON TRANSFERS
SECTION 5.1 Restrictions on Transfer.
The Securities shall not be Transferred or hypothecated before
satisfaction of (i) the conditions specified in this Section 5.1 and Sections
5.2 through 5.3, which conditions are intended to ensure compliance with the
provisions of the Securities Act with respect to the Transfer of any Security
and (ii) if applicable, Article 4 hereof. Any purported Transfer in violation
of this Article 5 and/or, if applicable, Article 4 hereof shall be void ab
initio and of no force or effect. Other than Transfers subject to Sections 4.2
or 4.3 hereof and other than Transfers to the public pursuant to an effective
registration statement or sales to the public pursuant to Rule 144 under the
Securities Act otherwise permitted hereunder, each Holder will cause any
proposed transferee of any Security or any interest therein held by it to agree
to take and hold such securities subject to the provisions and upon the
conditions specified in this Stockholders Agreement.
SECTION 5.2 Restrictive Legends.
5.2.1 Securities Act Legend. Except as otherwise provided in Section
5.4 hereof, each Security held by a Holder, and each Security issued to any
subsequent transferee of such Security, shall be stamped or otherwise imprinted
with a legend in substantially the following form:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR
PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE. SUCH
SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS
EFFECTIVE UNDER SUCH ACT, (ii) RULE 144 UNDER SUCH ACT, OR (iii)
ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
5.2.2 Other Legends. Except as otherwise permitted by the last
sentence of Section 5.1, each Security issued to each Holder or a subsequent
transferee shall include a legend in substantially the following form:
THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER, VOTING AND
OTHER TERMS AND CONDITIONS SET FORTH IN THE STOCKHOLDERS
AGREEMENT DATED AS OF OCTOBER 27, 1995, A COPY OF WHICH MAY BE
OBTAINED FROM XXXXXXXX HOLDINGS, INC. AT ITS PRINCIPAL EXECUTIVE
OFFICES.
SECTION 5.3 Notice of Proposed Transfers.
Prior to any Transfer or attempted Transfer of any Security, the Holder
of such Security shall (i) give ten days' prior written notice (a "Transfer
Notice") to the Company of such Holder's intention to effect such Transfer,
describing the manner and circumstances of the proposed Transfer, and (ii)
either (A) provide to the Company an opinion reasonably satisfactory to the
Company from counsel to such Holder who shall be reasonably satisfactory to the
Company, (or supply such other evidence reasonably satisfactory to the Company)
that the proposed Transfer of such Security may be effected without
registration under the Securities Act, or (B) certify to the Company that the
Holder reasonably believes the proposed transferee is a "qualified
institutional buyer" and that such Holder has taken reasonable steps to make
the proposed transferee aware that such Holder may rely on Rule 144A under the
Securities Act in effecting such Transfer. After receipt of the Transfer
Notice and opinion (if required), the Company shall, within five days thereof,
so notify the Holder of such Security and such Holder shall thereupon be
entitled to Transfer such Security in accordance with the terms of the Transfer
Notice. Each Security issued upon such Transfer shall bear the restrictive
legend set forth in Section 5.2, unless in the opinion of such counsel such
legend is not required in order to ensure compliance with the Securities Act.
The Holder of the Security giving the Transfer Notice shall not be entitled to
Transfer such Security until receipt of the notice from the Company under this
Section 5.3.
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SECTION 5.4 Termination of Certain Restrictions.
Notwithstanding the foregoing provisions of this Section 5, the
restrictions imposed by Section 5.2.1 upon the transferability of the
Securities and the legend requirements of Section 5.2.1 shall terminate as to
any Security (i) when and so long as such Security shall have been effectively
registered under the Securities Act and disposed of pursuant thereto or (ii)
when the Company shall have received an opinion of counsel reasonably
satisfactory to it that such Security may be transferred without registration
thereof under the Securities Act and that such legend may be removed. Whenever
the restrictions imposed by Section 5.2 shall terminate as to any Security, the
Holder thereof shall be entitled to receive from the Company, at the Company's
expense, a new Security not bearing the restrictive legend set forth in Section
5.2.
ARTICLE 6
OPTION BY CERTAIN UNACCREDITED HOLDERS
SECTION 6.1 Grant of Option.
Each Holder acknowledges HMTF's desire that each holder of the
Securities of the Company qualify as an Accredited Investor so that no
disclosure document will be required in order to exempt (pursuant to Regulation
D) any future issuances of securities to the existing stockholders of the
Company. Accordingly, upon the occurrence of an Option Transaction (as defined
in Section 6.2 hereof) with respect to the Company, each Holder (other than the
Excluded Holders) shall be deemed to have granted to Xxxxx, Xxxx XX Partners,
L.P., a Texas limited partnership (the "Optionor"), an option ("Option") to
purchase, upon the terms and conditions set forth herein, all Securities held
by such Holder and all shares, notes, or other securities now or hereafter
issued or issuable in respect of any such Securities (whether issued or
issuable by the Company or any other person or entity) (collectively, the
"Option Securities").
SECTION 6.2 Option Transaction.
The Option may be exercised only if (a) the Company is engaged in or
proposes to engage in a transaction in which any shares, notes, or other
securities will be issued to such Holder in a transaction constituting a "sale"
within the meaning of Section 2(3) of the Securities Act (whether through a
merger, consolidation, exchange, or purchase), (b) the Holder is not an
Accredited Investor at the time of the respective transaction (an "Unaccredited
Holder"), (c) no security holder (except for such Unaccredited Holder or any
other person granting a similar option to Optionor) of the Company involved in
the respective transaction fails at the time of such transaction to qualify as
an Accredited Investor, and (d) the issuer of the shares, notes, or other
securities involved in such transaction (as conclusively evidenced by any
notice signed in
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good faith by an executive officer or other authorized representative of
Optionor) has not prepared and is not expected to prepare in connection with
such transaction appropriate disclosure documents that are sufficient to
register such shares, notes, or other securities under the Securities Act or to
exempt such registration in accordance with Regulation D. Each transaction for
which the Option may be exercised as provided in this Section 6.2 is herein
referred to as an "Option Transaction."
SECTION 6.3 Exercise of Option.
Optionor may exercise the Option solely with respect to all, but not
less than all, of such Unaccredited Holder's Option Securities involved in the
respective Option Transaction. The Option may be exercised with respect to
such Option Securities at any time before the consummation of the respective
Option Transaction for which the Option is then exercisable. The exercise of
the Option will be timely and effectively made if Optionor provides written
notice of such exercise to such Unaccredited Holder before such consummation of
the respective Option Transaction. The earliest date on which such notice is
so mailed or delivered will constitute the respective exercise date of the
Option to which such notice relates.
SECTION 6.4 Closing.
Unless otherwise agreed by Optionor and such Unaccredited Holder, the
closing of each exercise of the Option will take place at the offices of
Optionor in Dallas, Texas, on the fifth business day after notice of the
Option's exercise is mailed or delivered in accordance with Section 6.3. At
the closing, Optionor will pay the exercise price to such Unaccredited Holder
in cash (by certified or cashier's check) solely upon such Unaccredited
Holder's delivering to Optionor valid certificates evidencing all Option
Securities then being purchased pursuant to the exercise of the Option. Such
certificates will be duly endorsed (with signature guaranteed) for transfer to
Optionor, and upon delivery of such certificates to Optionee, such Unaccredited
Holder will be deemed to represent and warrant to Optionee that the transferred
Option Securities are owned by such Unaccredited Holder free and clear of all
liens, adverse claims, and other encumbrances other than as provided in this
Stockholders Agreement. Payment of the exercise price for the Option
Securities is not required in order to effect the timely exercise of the
Option. In order to ensure the transfer of the Option Securities purchased
upon exercise of the Option, each Unaccredited Holder hereby severally appoints
Optionee as his or her attorney in fact for the purpose of effecting any such
transfer, and each Unaccredited Holder acknowledges and agrees that such power
of attorney is coupled with an interest and is irrevocable. Moreover, Optionee
and each Unaccredited Holder will promptly perform, whether before or after any
Option closing, such additional acts (including without limitation executing
and delivering additional documents) as are reasonably required by either such
party to effect more fully the transactions contemplated hereby.
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SECTION 6.5 Exercise Price.
The exercise price for each Option Security will equal the price per
share (or, in the case of securities other than capital stock, other applicable
denomination) to be paid in connection with the Option Transaction as
determined in good faith by the Board of Directors or such other governing body
(or authorized committee thereof) of either (a) the issuer of such Option
Security or (b) Optionor if no such issuer determination is made, it being
understood that determinations made by the issuer or Optionor pursuant to this
Section 6.5 will be final and conclusive.
SECTION 6.6 Assignment of Option.
The Option may be assigned or transferred in whole or in part by
Optionor without any consent or other action on the part of the affected Other
Holder, and all references herein to "Optionor" will include without limitation
each assignee or transferee of all or any part of the Option.
ARTICLE 7
TERMINATION
The provisions of this Agreement shall terminate on October 27, 2005;
provided, however, that Sections 4.1, 4.2, 4.3, Article 5 (other than Sections
5.2 and 5.4) and Article 6 of this Agreement shall terminate upon the
consummation prior to the expiration of such 10-year period of a registered
underwritten public offering of Common Stock or Common Stock Equivalents.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows (or at such other address as may
be substituted by notice given as herein provided):
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If to the Company:
Xxxxxxxx Holdings, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Copies to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Xxxx X. Xxxx
Xxxx X. Xxxxx
Hicks, Muse, Xxxx & Xxxxx Incorporated
1325 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Xxxx X. Xxxxxx
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to any Holder, at its address listed on the signature pages hereof.
Any notice or communication hereunder shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and five
calendar days after mailing if sent by registered or certified mail (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
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SECTION 8.2 Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment is
a Saturday, a Sunday or a day on which banking institutions at such place are
not required to be open. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a
Legal Holiday, and no interest on the amount of such payment shall accrue for
the intervening period.
SECTION 8.3 Governing Law; Jurisdiction.
THIS PURCHASE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
SECTION 8.4 Successors and Assigns.
Whether or not an express assignment has been made pursuant to the
provisions of this Stockholders Agreement, provisions of this Stockholders
Agreement that are for the Holders' benefit as the holders of any Securities
are also for the benefit of, and enforceable by, all subsequent holders of
Securities, except as otherwise expressly provided herein. This Stockholders
Agreement shall be binding upon the Company, each Holder, and their respective
successors and assigns.
SECTION 8.5 Duplicate Originals.
All parties may sign any number of copies of this Stockholders
Agreement. Each signed copy shall be an original, but all of them together
shall represent the same agreement.
SECTION 8.6 Severability.
In case any provision in this Stockholders Agreement shall be held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
the remaining provisions shall not in any way be affected or impaired thereby
SECTION 8.7 No Waivers; Amendments.
8.7.1 No failure or delay on the part of the Company or any Holder in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are
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cumulative and are not exclusive of any remedies that may be available to the
Company or any Holder at law or in equity or otherwise.
8.7.2 Any provision of this Stockholders Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company and the Required Holders; provided that no such amendment or waiver
shall, (i) unless signed by all of the Holders, amend the provisions of Section
2.1, (ii) unless signed by the Required Holders, amend the provisions of
Section 2.2 and (ii) unless signed by all of the Holders affected, (A) amend
the provisions of this Section 8.7.2 or (B) change the number of Holders which
shall be required for the Holders or any of them to take any action under this
Section 8.7.2 or any other provision of this Stockholders Agreement.
[Remainder of page intentionally left blank]
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SIGNATURES TO STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Stockholders
Agreement to be duly executed, all as of the date first written above.
XXXXXXXX HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Chairman & President
----------------------------------
26
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
HICKS, MUSE, XXXX & XXXXX EQUITY FUND II,
L.P.
By: HM2/GP Partners, L.P., as General
Partner
By: Xxxxx, Muse GP Partners, L.P., its
General Partner
By: Xxxxx, Muse Fund II
Incorporated, its General
Partner
By: /s/ XXXX X. XXXXXX
----------------------------
Xxxx X. Xxxxxx
Vice President
27
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
XXXXX, MUSE & CO. PARTNERS, L.P.
By: HM Partners, Inc., its General
Partner
By: /s/ XXXX X. XXXXXX
--------------------------------
Xxxx X. Xxxxxx
Vice President
Address:
c/o Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Xxxx X. Xxxx
Xxxxxxx X. Xxxx
Xxxx X. Xxxxx
Xxxxxxxx X. Xxxxxx, Xx.
Copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
28
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXXX X. XXXX
----------------------------------------
XXXXXXX X. XXXX
29
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXXX X. XXXXXXXX
----------------------------------------
XXXXXXX X. XXXXXXXX
30
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXXX X. XXXXXXXXX
----------------------------------------
XXXXXXX X. XXXXXXXXX
31
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXX WASH
----------------------------------------
XXXXXX WASH
32
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
CCC/OMNI INVESTMENT PARTNERS
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: General Partner
----------------------------------
33
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXXX X. XXXXXXX
----------------------------------------
XXXXXXX X. XXXXXXX
34
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXX X. XXXXX
----------------------------------------
XXXXXX X. XXXXX
35
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXX X. XXXXX
----------------------------------------
XXXXXX X. XXXXX
36
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXXXX X. XXXXXXXX
----------------------------------------
XXXXXXXX X. XXXXXXXX
37
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXX X. XXXXXX
----------------------------------------
XXXX X. XXXXXX
38
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXX X. XXXXXXXX
----------------------------------------
XXXXX X. XXXXXXXX
39
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXX X. XXXXXXX
----------------------------------------
XXXXXX X. XXXXXXX
40
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXX XXXXXXX
----------------------------------------
XXXX XXXXXXX
41
SIGNATURES TO HMTF STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXX X. XXXXXXX
----------------------------------------
XXXXX X. XXXXXXX
