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Exhibit 10.10
EXECUTION COPY
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EQUITYHOLDERS AGREEMENT
Dated as of February 9, 1998
By and Among
KEY PLASTICS, INC.,
KEY PLASTICS TECHNOLOGY, L.L.C.
PARIBAS PRINCIPAL INCORPORATED
and
THE OTHER SHAREHOLDERS SIGNATORY HERETO
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* A portion of this document has been redacted pursuant to
a request for confidential treatment pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended, to the Securities and
Exchange Commission (the "SEC"). An unredacted version of this
document has been filed separately with the SEC.
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS............................................................... 2
SS. 1.1 Certain Definitions............................................................... 2
ARTICLE II TRANSFER OF SHARES................................................................ 6
SS. 2.1 Restrictions...................................................................... 6
SS. 2.2 Permitted Transfers............................................................... 7
SS. 2.3 Sales by Equityholders Subject to Tag-Along Rights................................ 9
SS. 2.4 Grant to Plastics of Bring-Along Rights........................................... 12
SS. 2.5 Right of First Refusal............................................................ 13
SS. 2.6 Grant of Preemptive Rights to Equityholders....................................... 15
*
ARTICLE III CORPORATE GOVERNANCE.............................................................. 17
SS. 3.1 Board of Directors of Plastics.................................................... 17
SS. 3.2 Management Committee of the Company............................................... 17
SS. 3.3 Election.......................................................................... 17
ARTICLE IV MISCELLANEOUS..................................................................... 17
SS. 4.1 Entire Agreement.................................................................. 17
SS. 4.2 Captions.......................................................................... 17
SS. 4.3 Counterparts...................................................................... 17
SS. 4.4 Notices........................................................................... 18
SS. 4.5 Successors and Assigns............................................................ 19
SS. 4.6 GOVERNING LAW..................................................................... 19
SS. 4.7 Arbitration....................................................................... 19
SS. 4.8 Benefits Only to Parties.......................................................... 20
SS. 4.9 Termination; Survival of Benefits................................................. 20
SS. 4.10 Publicity......................................................................... 20
SS. 4.11 Confidentiality................................................................... 20
SS. 4.12 Expenses.......................................................................... 21
SS. 4.13 Amendments; Waivers............................................................... 21
SS. 4.14 Severability...................................................................... 21
SCHEDULE 1.0 The Shareholders
EXHIBIT A Form of Shareholder's Consent
* A portion of this document has been redacted at this point pursuant to a
request for confidential treatment filed with the SEC. An unredacted
version of this document has been filed separately with the SEC.
(i)
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EQUITYHOLDERS AGREEMENT
EQUITYHOLDERS AGREEMENT (as amended from time to time, this
"Agreement"), dated as of February 9, 1998, by and among Key Plastics
Technology, L.L.C., a Michigan limited liability company (the "Company"), Key
Plastics, Inc., a Michigan corporation ("Plastics"), Xxxxx X. Xxxxxx ("Xxxxxx"),
Xxxx X. Xxxxxx ("Xxxxxx") and Xxxxxx Mars ("Mars" and together with Xxxxxx and
Xxxxxx, the "Shareholders") and Paribas Principal Incorporated, a New York
corporation (together with its Permitted Transferees, "PPI").
W I T N E S S E T H :
WHEREAS, Xxxxxx owns 79,833 shares of Common Stock, Xxxxxx owns 90,828
shares of Common Stock and Mars owns 62,065 shares of Common Stock of Plastics;
WHEREAS, Plastics and the Company have entered into (i) a Contribution
and Assignment Agreement and (ii) an Assumption Agreement, each dated as of
February 9, 1998 (collectively, the "Contribution Agreement" and together with
any bills of sale, assignments, licenses, leases and other agreements executed
in connection therewith, the "Contribution Documents") whereby Plastics has
transferred all of its assets (other than the "Excluded Assets" as defined in
the Contribution Agreement) and liabilities to the Company as a capital
contribution in the Company;
WHEREAS, the Company, Plastics and PPI have entered into a Securities
Purchase Agreement (as amended from time to time, the "Securities Purchase
Agreement"), dated as of February 9, 1998, pursuant to which, on the date
hereof, PPI shall purchase from the Company and the Company shall issue a
Membership Interest in the Company which initially represents a 25% Membership
Percentage;
WHEREAS, the Company and each of Plastics and PPI, as members have
entered into an Operating Agreement relating to the operation of the Company (as
amended from time to time, the "Operating Agreement").
WHEREAS, the Company, Plastics, PPI and the Shareholders each desire
to enter into this Agreement, INTER ALIA, to regulate and limit certain rights
in connection with the Equity Securities and to limit the sale, assignment,
transfer, encumbrance or other disposition of such Equity Securities as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
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ARTICLE I
CERTAIN DEFINITIONS
ss. 1.1 CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the following meanings:
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with, such Person; provided, however, that, an Affiliate shall include
any entity that directly or indirectly (including through limited partner or
general partner interests) owns more than 5% of any class of the equity of any
other entity.
"Agreement" shall have the meaning set forth in the first paragraph of
this Agreement.
"Banker Proposal" shall have the meaning set forth in Section 2.7 of
this Agreement.
"Xxxxxx" shall have the meaning set forth in the first paragraph of
this Agreement.
"Board" shall mean the Board of Directors of Plastics.
"Business Day" shall mean any day except a Saturday, a Sunday or other
day on which commercial banks are required or authorized to close in New York,
New York.
"Common Stock" shall mean the Common Stock of Plastics, par value
$0.30 per share.
"Company" shall have the meaning set forth in the first paragraph of
this Agreement.
"Company Proposal" shall have the meaning set forth in Section 2.7 of
this Agreement.
"Contribution Agreement" shall have the meaning set forth in the
recitals of this Agreement.
"Contribution Documents" shall have the meaning set forth in the
recitals of this Agreement.
"Equityholder" shall mean each Member and each Shareholder.
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"Equity Securities" shall mean Membership Interests or Common Stock.
"Initiating Shareholder" shall have the meaning set forth in
Section 2.3(I) (a) of this Agreement.
"Interest Transfer Notice" shall have the meaning set forth in Section
2.3(II)(a) of this Agreement.
"Issuer" shall have the meaning set forth in Section 2.6 of this
Agreement.
*
"Management Committee" shall have the meaning set forth in the
Operating Agreement.
"Mars" shall have the meaning set forth in the first paragraph of this
Agreement.
"Member" shall mean any Person who holds a Membership Interest in the
Company.
"Membership Interest" shall mean, with respect to each Member, such
Member's interest in the Company which represents the Membership Percentage in
the Company of such Member.
"Membership Percentage" shall have the meaning set forth in the
Operating Agreement.
"New Securities" shall mean Common Stock or Membership Interests of
any class and any other equity securities of the Company or Plastics which are
not limited to a fixed sum or a fixed percentage of par value in respect of
participation in dividends and distributions
* A portion of this document has been redacted at this point
pursuant to a request for confidential treatment filed with the SEC.
An unredacted version of this document has been filed separately with
the SEC.
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in liquidation, whether authorized now or in the future, and any rights, options
or warrants to purchase any such common stock ("Options"), and securities
(including, without limitation, debt obligations) of any type whatsoever, that
are, or may become, convertible into or exchangeable for any such common stock,
Membership Interests or Options; provided that "New Securities" shall not
include (i) shares sold pursuant to a public offering pursuant to an effective
registration statement filed under the Securities Act or (ii) shares of Common
Stock or Membership Interests issued to employees of Plastics or the Company in
an aggregate amount, not to exceed, collectively beginning immediately after the
effectiveness of this Agreement, 3% of the Membership Interests outstanding
immediately after giving effect to this Agreement, or Options exercisable into
such shares of Common Stock or Membership Interests. For the purposes of the 3%
limitation contained in item (ii) of the preceding sentence, each issuance of
shares of Common Stock shall be deemed to be an issuance of Membership Interests
with a percentage equal to the product of (A) the number of shares of Common
Stock so issued divided by the total number of Shares outstanding on the date
hereof multiplied by (B) the Membership Percentage of the Membership Interest
owned by Plastics on the date hereof.
"Offering Equityholder" shall have the meaning set forth in
Section 2.5 of this Agreement.
"Operating Agreement" shall have the meaning set forth in the recitals
of this Agreement.
"Options" shall have the meaning set forth in the definition of New
Securities.
"Permitted Transfer" shall have the meaning set forth in
Section 2.2(a) of this Agreement.
"Permitted Transferee" shall have the meaning set forth in
Section 2.2(a) of this Agreement.
"Person" shall mean and include natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Plastics" shall have the meaning set forth in the first paragraph of
this Agreement.
"Plastics Offer" shall have the meaning set forth in
Section 2.5(a)(II) of this Agreement.
"Plastics Offer Notice" shall have the meaning set forth in Section
2.5(a)(II) of this Agreement.
"PPI" shall have the meaning set forth in the first paragraph of this
Agreement.
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"PPI Offer" shall have the meaning set forth in Section 2.5(a)(I) of
this Agreement.
"PPI Offer Notice" shall have the meaning set forth in
Section 2.5(a)(I) of this Agreement.
"Preemptive Notice" shall have the meaning set forth in Section 2.6 of
this Agreement.
"Preemptive Price" shall mean the price equal to the fair market value
of the New Securities as determined in good faith by (i) the Board, in the case
of an issuance by Plastics and (ii) by the Management Committee, in the case of
an issuance by the Company.
"Pro Rata Amount" shall mean, (i) with respect to any calculation
relating to the relative ownership of Plastics, for each Shareholder and each
transaction, the quotient obtained by dividing (A) the number of shares of
Common Stock held by such Shareholder by (B) the aggregate number of shares of
Common Stock held by all Shareholders who are participating in such transaction;
and (ii) with respect to any calculation relating to the relative ownership of
the Company, for each Member and each transaction, the quotient obtained by
dividing (A) the Membership Percentage held by such Member by (B) the aggregate
Membership Percentages held by all Members who are participating in such
transaction.
"Qualified Public Offering" shall mean a widely distributed sale of
securities issued in exchange for Membership Interests pursuant to an
underwritten public offering pursuant to an effective registration statement
filed with the SEC pursuant to the Securities Act which yields net proceeds to
the Company in cash equal to 20% of the total equity value of the Company
calculated by using the initial public offering price.
"Regulated Holder" shall mean any Equityholder which is subject to the
provisions of Regulation Y or the SBIA or which is an Affiliate of any entity
subject to the provisions of Regulation Y or the SBIA.
"Regulation Y" shall mean Regulation Y promulgated by the Board of
Governors of the Federal Reserve, pursuant to the Bank Holding Company Act of
1956, as amended, or any successor regulation thereto.
"Regulatory Problem" shall mean, with respect to any Equityholder, any
set of facts, events or circumstances the existence of which would cause such
Equityholder to believe that there is a substantial risk of assertion by a
governmental entity (which belief shall be reasonable in light of the prevailing
regulatory environment) that such Equityholder is or would be in violation of
any law, regulation, rule or other requirement of any governmental authority
(including without limitation, the SBIA).
"Sale of the Business" shall mean any transaction or series of
transactions (whether structured as a stock sale, merger, consolidation,
reorganization, asset sale or other-
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wise), which results in the sale or transfer of all the assets of the Company
and its Subsidiaries or 100% of the Membership Interests of the Company to an
unaffiliated bona fide third party in which all consideration (i) payable to
holders of Membership Interests is distributed PRO RATA pursuant to equity
ownership and (ii) which is payable to PPI in cash or other consideration
satisfactory to PPI.
"SBIA" shall mean the Small Business Investment Act of 1958, as
amended, and the regulations promulgated thereunder.
"SEC" shall mean, at any time, the Securities and Exchange Commission
or any other federal agency at such time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Securities Purchase Agreement" shall have the meaning set forth in
the recitals of this Agreement.
"Share Transfer Notice" shall have the meaning set forth in Section
2.3(I)(a) of this Agreement.
"Shareholder" shall have the meaning set forth in the first paragraph
of this Agreement.
"Xxxxxx" shall have the meaning set forth in the first paragraph of
this Agreement.
"Transfer" shall have the meaning set forth in Section 2.1(a) of this
Agreement.
ARTICLE II
TRANSFER OF SHARES
ss. 2.1 RESTRICTIONS. (a) No Equityholder shall sell, assign, pledge,
or in any manner, transfer any Equity Securities or any right or interest
therein, to any Person (each such action, a "Transfer") except for Permitted
Transfers.
(b) From and after the date hereof, all certificates representing
shares of Common Stock held by any Stockholder shall bear a legend which shall
state as follows:
The shares represented by this certificate are subject to certain
restrictions against transfer set forth in an Equityholders Agreement,
dated as of February 9, 1998, as may be amended from time to time. A copy
of such Equityholders Agreement has been filed in the chief executive
office of the Company in the
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State of Michigan, where the same may be inspected daily during business
hours.
(c) In addition to the legend required by Section 2.1(b) above, all
certificates representing shares of Common Stock held by any of the Stockholders
shall bear a legend which shall state as follows:
The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and such
shares may not be offered, sold, pledged or otherwise transferred except
(1) pursuant to an exemption from, or in a transaction not subject to, the
registration requirements under the Securities Act or (2) pursuant to an
effective registration statement under the Securities Act, in each case in
accordance with any applicable securities laws of any State of the United
States.
(d) Promptly upon the execution and delivery of this Agreement, each
Stockholder currently holding shares of Common Stock shall deliver to the
Secretary of Plastics all certificates then held by such Stockholder
representing such shares of Common Stock which do not have such legends affixed
thereto as are required by this Section 2.1. Plastics shall cause such legends
to be affixed promptly to each of such certificates and such certificates to be
returned promptly to the registered holder thereof.
(e) The Company and Plastics, agree that it will not cause or permit
the Transfer of any Equity Securities to be made on its books unless the
Transfer is permitted by this Agreement and has been made in accordance with the
terms hereof.
(f) Each Equityholder agrees that it will not effect any Transfer of
Equity Securities unless such Transfer is made (i) pursuant to an effective
registration statement under the Securities Act or pursuant to an exemption from
the registration requirements of the Securities Act and (ii) in accordance with
any applicable securities laws of any State of the United States.
ss. 2.2 PERMITTED TRANSFERS. (a) Notwithstanding anything to the
contrary contained herein, an Equityholder may at any time effect any of the
following Transfers (each a "Permitted Transfer", and each transferee of such
Equityholder in respect of such Transfer, a "Permitted Transferee"):
(i) Any Transfer of any or all Common Stock owned by a
Shareholder following such Shareholder's death by will or intestacy to such
Shareholder's legal representative, heir or legatee;
(ii) Any Transfer of any or all Common Stock owned by a
Shareholder as a gift or gifts during such Shareholder's lifetime to such
Shareholder's spouse, children, sibling, grandchildren or a trust or other legal
entity for the benefit of such Shareholder or any of the foregoing;
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(iii) Any Transfer by Mars to any Person;
(iv) Any Transfer by PPI (I) made pursuant to
Section 2.2(b), (II) to Companie Financiere de Paribas or any subsidiary of
Compagnie Financiere de Paribas and (III) to an employee of PPI;
(v) Any Transfer by any Equityholder which is made in
accordance with Sections 2.3, 2.4, 2.5 or 2.7;
(vi) Any Transfer by an Equityholder which is made pursuant
to Article VII of the Securities Purchase Agreement; and
(vii) Any Transfer made by Xxxxxx or Xxxxxx of Shares of
Common Stock to an employee of the Company or Plastics with respect to shares of
Common Stock or Membership Interests purchased by Xxxxxx or Xxxxxx, as the case
may be, from employees of the Company or Plastics.
(b) Notwithstanding any other provision of this Agreement to the
contrary, in the event that PPI or any of its Affiliates shall determine that if
PPI or such Affiliate, shall continue to hold some or all of the Equity
Securities or any other securities of the Company or Plastics held by it, there
is a material risk that such ownership will result in the violation of any
statute, regulation or rule of any governmental authority (including, without
limitation, Regulation Y) or the cost of continuing to hold such securities has,
in the reasonable judgment of PPI or such Affiliate, significantly increased
based on a statute, regulation or rule of any governmental authority or any
change thereof, PPI or such Affiliate, may sell, exchange or otherwise dispose
of such securities or other securities, in as prompt and orderly a manner as is
reasonably necessary. In connection with the foregoing, in the event that PPI
determines to sell its Membership Interest in accordance with the foregoing, the
Company and PPI shall negotiate in good faith for a period of 30 days with the
intent of determining a fair price at which the Company shall purchase the
Membership Interest required to be sold and in the event that no agreement can
be reached or the Company otherwise does not purchase such Membership Interests
within such 30 day period, the Company and Plastics shall cooperate with PPI or
such Affiliate in, at PPI's election, (i) disposing of such securities to a
third party (other than a third party which is a direct competitor of the
Company) or (ii) exchanging all or any portion of such voting securities on a
share-for-share basis for shares of a non-voting security of the Company or
Plastics (such non-voting security to be identical in all respects to such
voting securities or other securities, except that they shall be non-voting and
shall be convertible or exercisable into voting securities on such conditions as
are requested by PPI in light of the regulatory considerations prevailing).
Without limiting the foregoing, at the reasonable request of PPI or such
Affiliate, the Company or Plastics shall provide (and authorize PPI or such
Affiliate, to provide) financial and other information concerning the Company
and Plastics to any prospective purchaser of such securities owned by PPI or
such Affiliate, and shall amend this Agreement, the articles of organization of
the Company or Plastics, the operating agreement of the Company, and any related
agreements and instruments and shall take such additional actions in order to
effectuate and reflect the foregoing. Neither the Company nor Plastics shall
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be required to provide any such information unless the recipient thereof signs a
confidentiality agreement reasonably satisfactory to Plastics.
(c) In any such Transfer referred to above in Section 2.2(a) (other
than pursuant to Section 2.2(a)(vi) of this Agreement), the Permitted Transferee
shall agree in writing to be bound by all the provisions of this Agreement and
shall execute and deliver to each of the Company, Plastics and PPI a counterpart
to this Agreement. Each Permitted Transferee shall hold such Equity Securities
subject to the provisions of this Agreement and shall be deemed to be a
"Shareholder" hereunder if such Permitted Transferee receives Common Stock and
shall be deemed to be a "Member" if such Permitted Transferee receives a
Membership Interest, as if such Permitted Transferee were an original signatory
hereto and shall be deemed to be a party to this Agreement.
ss. 2.3 SALES BY EQUITYHOLDERS SUBJECT TO TAG-ALONG RIGHTS. (I) (a)
In the event that Xxxxxx or Xxxxxx (either Xxxxxx or Xxxxxx, the "Initiating
Shareholder") proposes to effect a Transfer (other than a Permitted Transfer
described in Section 2.2(a)(i), 2.2(a)(ii), 2.2(a)(vi) or 2.2(a)(vii), or
pursuant to Section 2.7 hereof) then such Initiating Shareholder shall promptly
give written notice (the "Share Transfer Notice") to PPI at least thirty (30)
days prior to the closing of such Transfer. The Share Transfer Notice shall
describe in reasonable detail the proposed Transfer including, without
limitation, the name of, the type and the number of shares of Common Stock to be
purchased by, the transferee, the purchase price of each share of Common Stock
to be sold, any other significant terms of such sale and the date such proposed
sale is expected to be consummated.
(b) PPI shall have the right, exercisable upon delivery of an
irrevocable written notice to the Initiating Shareholder within twenty (20) days
after receipt of the Share Transfer Notice, to participate in such proposed sale
on the same terms and conditions as set forth in the Share Transfer Notice;
PROVIDED HOWEVER, that PPI shall not be required to make representations and
warranties other than relating to its authority to give effect to such
transaction and its title to its Membership Interest and PPI shall not be
required to provide any indemnity in connection with any such Transfer, unless
all sellers in such Transfer provide such an indemnity, and in the event that
all sellers are required to provide an indemnity in connection with such
Transfer, PPI shall not be liable for more than the lesser of (A) its pro rata
share of such indemnification payments (based upon the total consideration
received by PPI divided by the total consideration received by all sellers in
such Transfer) and (B) the net proceeds actually received by PPI as
consideration for its Membership Interest in such Transfer. PPI shall have the
right to sell all or any portion of the Membership Interest owned by it as
determined in accordance with the calculation set forth below. If PPI elects to
participate in the sale described in the Share Transfer Notice it shall indicate
in its notice of election to the Initiating Shareholder the maximum Membership
Percentage it desires to sell in such sale. PPI shall be entitled to sell a "pro
rata portion" of such maximum percentage. For purposes of this Section 2.3(I),
"pro rata portion" shall mean a fraction, the numerator of which is the total
number of shares of Common Stock the Initiating Shareholder proposed to be sold
in the Share Transfer Notice and the denominator of which is the total number of
shares of Common Stock held by Xxxxxx and Xxxxxx immediately prior to the sale
proposed in the Share Transfer Notice. In the event the
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transferee named in the Share Transfer Notice is not willing to purchase all of
the shares of Common Stock and Membership Interests proposed to be sold by the
Initiating Shareholder and PPI pursuant to this paragraph, then the number of
shares of Common Stock and Membership Interests to be sold by each of the
Shareholders and PPI shall be equitably and proportionately reduced.
(c) PPI shall effect its participation in the sale by delivering
on the date scheduled for such sale to the Initiating Shareholder for delivery
to the prospective transferee one or more certificates or other evidence of
transfer, in proper form for transfer, which represent the Membership Interest
which PPI is entitled to sell in accordance with Section 2.3(I)(b). Such
certificate, certificates or other evidence of transfer that PPI delivers to the
Initiating Shareholder shall be delivered on such date to such transferee in
consummation of the sale of the Equity Securities pursuant to the terms and
conditions specified in the Share Transfer Notice, and the Initiating
Shareholder shall concurrently therewith remit to PPI that portion of the sale
proceeds to which PPI is entitled by reason of its participation in such sale.
The Initiating Shareholder's sale of the Equity Securities in any sale proposed
in a Share Transfer Notice shall be effected on substantially the terms and
conditions set forth in such Share Transfer Notice.
(d) The exercise or non-exercise of the rights of PPI hereunder
to participate in one or more sales of the Equity Securities made by the
Initiating Shareholder shall not adversely affect its rights to participate in
subsequent sales of Equity Securities subject to this Section 2.3(I).
(e) Notwithstanding anything to the contrary herein, the
provisions of this Section 2.3(I) will not apply to any Transfer which (i) in
the case of a Transfer by Xxxxxx or any of his Permitted Transferees holding
shares of Common Stock pursuant to a Transfer effected pursuant to Section
2.2(a)(i) or (ii), when aggregated with all other Transfers of shares of Common
Stock by Xxxxxx and such Permitted Transferees, excluding Transfers effected by
Xxxxxx to such Permitted Transferees after the date hereof and excluding
Transfers effected pursuant to Section 2.2(a)(vi), includes not more than 3,992
shares of Common Stock (as such number may be adjusted for stock splits, reverse
stock splits and stock dividends), (ii) in the case of Xxxxxx or any of his
Permitted Transferees holding shares of Common Stock pursuant to a Transfer
effected pursuant to Section 2.2(a)(i) or (ii), when aggregated with all other
Transfers of shares of Common Stock by Xxxxxx and such Permitted Transferees,
excluding Transfers effected by Xxxxxx to such Permitted Transferees after the
date hereof and excluding Transfers effected pursuant to Section 2.2(a)(vi),
includes not more than 9,083 shares of Common Stock (as such number may be
adjusted for stock splits, reverse stock splits and stock dividends). In no
event may Xxxxxx and his Permitted Transferees holding shares of Common Stock
pursuant to a Transfer effected pursuant to Section 2.2(a)(i) or (ii) effect
Transfers of more than 7,983 shares of Common Stock (as such number may be
adjusted for stock splits, reverse stock splits and stock dividends) held by him
on the date hereof other than pursuant to Section 2.2(a)(i), (ii) or (vi). For
the purposes of the limitations contained in this Section 2.3(e), each sale of
Membership Interests by Plastics shall be deemed to be a sale by Xxxxxx and
Xxxxxx of a number of shares of Common Stock equal to the product of (A) the
number of
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shares of Common Stock owned by Xxxxxx or Xxxxxx, as the case may be, at the
time of such sale, multiplied by (B) a fraction, the numerator of which is the
number of shares of Common Stock owned by Xxxxxx or Xxxxxx, as the case may be,
at the time of such sale and the denominator of which is the total number of
shares of Common Stock then outstanding, and multiplied by (C) a fraction, the
numerator of which is the Membership Percentage represented by the Membership
Interest sold by Plastics and the denominator of which is the Membership
Percentage represented by the total Membership Interest owned by Plastics
immediately prior to such sale.
(f) Neither Plastics nor any of its Affiliates or Shareholders
will receive any economic benefits (including without limitation any management,
advisory or closing fees) in connection with any Transfer made pursuant to this
Section 2.3(I) unless PPI receives its pro rata share of such economic benefits
(based upon the total consideration received by PPI divided by the total
consideration received by all sellers in such Transfer). PPI shall receive the
same amount and type of consideration as each Shareholder in connection with a
Transfer subject to this Section 2.3(I) and in each case, on the same terms and
conditions. PPI will receive an amount per percentage unit sold which is equal
to the amount received per percentage unit sold indirectly by the Initiating
Shareholder with respect to the shares of Common Stock sold.
(II) (a) In the event that Plastics proposes to effect a Transfer
(other than pursuant to Section 2.4) then Plastics shall promptly give written
notice (the "Interest Transfer Notice") to PPI at least twenty (20) days prior
to the closing of such Transfer. The Interest Transfer Notice shall describe in
reasonable detail the proposed Transfer including, without limitation, the name
of, the type and the number of Equity Securities to be purchased by, the
transferee, the purchase price of each such Equity Interest to be sold, any
other significant terms of such sale and the date such proposed sale is expected
to be consummated.
(b) PPI shall have the right, exercisable upon delivery of an
irrevocable written notice to Plastics within ten (10) days after receipt of the
Interest Transfer Notice, to participate in such proposed sale on the same terms
and conditions as set forth in the Interest Transfer Notice; PROVIDED HOWEVER,
that PPI shall not be required to make representations and warranties other than
relating to its authority to give effect to such transaction and its title to
its Membership Interest and PPI shall not be required to provide any indemnity
in connection with any such Transfer, unless all sellers in such Transfer
provide such indemnity, and in the event that all sellers are required to
provide an indemnity in connection with such Transfer, PPI shall not be liable
for more than the lesser of (A) its pro rata share of such indemnification
payments (based upon the total consideration received by PPI divided by the
total consideration received by all sellers in such Transfer) and (B) the net
proceeds actually received by PPI as consideration for its Membership Interest
in such Transfer. PPI shall have the right to sell all or any portion of the
Membership Interest owned by it as determined in accordance with the calculation
set forth below. If PPI elects to participate in the sale described in the
Interest Transfer Notice it shall indicate in its notice of election to Plastics
the maximum Membership Percentage it desires to sell in such sale. PPI shall be
entitled to sell a "pro rata portion" of such maximum percentage. For purposes
of this Section 2.3(II), "pro rata portion" shall mean, a fraction, the
numerator of which is the total Membership Percentage proposed to be sold by
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Plastics in the Interest Transfer Notice and the denominator of which is the
total Membership Percentage owned by Plastics immediately prior to the sale
proposed in the Interest Transfer Notice. In the event the transferee named in
the Interest Transfer Notice is not willing to purchase all of the Membership
Interest proposed to be sold by Plastics and PPI pursuant to this paragraph,
then the Membership Interest to be sold by each of Plastics and PPI shall be
proportionately reduced.
(c) PPI shall effect its participation in the sale by delivering on
the date scheduled for such sale to Plastics for delivery to the prospective
transferee one or more certificates or other evidence of ownership, in proper
form for transfer, which represent the Membership Interest which PPI is entitled
to sell in accordance with Section 2.3(II)(b). Such certificate, certificates or
other evidence of Transfer that PPI delivers to Plastics shall be delivered on
such date to such transferee in consummation of the sale of the Equity
Securities pursuant to the terms and conditions specified in the Interest
Transfer Notice, and Plastics shall concurrently therewith remit to PPI that
portion of the sale proceeds to which PPI is entitled by reason of its
participation in such sale. Plastics's sale of the Equity Securities in any sale
proposed in a Interest Transfer Notice shall be effected on substantially the
terms and conditions set forth in such Interest Transfer Notice.
(d) The exercise or non-exercise of the rights of PPI hereunder to
participate in one or more sales of the Equity Securities made by Plastics shall
not adversely affect its rights to participate in subsequent sales of Equity
Securities subject to this Section 2.3(II).
(e) Neither Plastics nor any of its Affiliates or Shareholders will
receive any economic benefits (including without limitation any management,
advisory or closing fees) in connection with any Transfer made pursuant this
Section 2.3(II) unless PPI receives its pro rata share of such economic benefits
(based on the total consideration received by PPI divided by the total
consideration received by all sellers in such Transfer). PPI shall receive the
same amount and type of consideration as Plastics in connection with a Transfer
subject to this Section 2.3(II) and in each case, on the same terms and
conditions. PPI will receive an amount per percentage unit sold which is equal
to the amount received per percentage unit sold by Plastics.
ss. 2.4 GRANT TO PLASTICS OF BRING-ALONG RIGHTS. (a) At the request
of Plastics, PPI agrees to vote all of its Membership Interest and shall sell
all of its Membership Interest, in each case as directed by Plastics, in
connection with and for the purpose of approving a Sale of the Business, to a
bona fide third party who is not an Affiliate of Plastics, the Company or any of
the Shareholders. Each time Members meet, or act by written consent in lieu of
meeting, for the purpose of approving a Sale of the Business, PPI agrees to vote
all of its Equity Securities, and if such Sale of the Business is structured as
a stock sale, to sell all (but not less than all) of its Equity Securities, as
directed by Plastics.
(b) In furtherance of its covenants in Section 2.4(a) and subject to
Section 2.4(c), PPI hereby agrees to cooperate fully with Plastics and the
purchaser in any such Sale
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of the Business and to execute and deliver such documents (including purchase
agreements) and instruments reasonably necessary to effect such Sale of the
Business. If any proceeds of any Sale of the Business are received or maintained
by the Company, then the Company, simultaneously with the consummation of such
Sale of the Business, will distribute such assets to the Members based on the
Membership Percentages of such Members.
(c) Notwithstanding anything to the contrary contained herein, PPI
shall not be required to comply with the obligations set forth in this Section
2.4 unless the following conditions are satisfied: (i) upon the consummation of
the Sale of Business, PPI will receive its Pro Rata Amount of the aggregate
gross consideration paid by the purchaser to the Members in connection with any
Sale of the Business, (ii) PPI shall not be required to accept any consideration
other than cash or other consideration reasonably acceptable to PPI and in no
event shall PPI be required to accept any consideration that would cause it to
have a Regulatory Problem, (iii) PPI shall only be required to make
representations and warranties relating to its authority to give effect to such
transaction and its title to its Membership Interest, (iv) PPI shall not be
required to provide an indemnity in connection with any Sale of Business, unless
all sellers in such Sale of the Business provide such indemnity, and in the
event that all sellers are required to provide an indemnity in connection with
the Sale of the Business, PPI shall not be liable for more than the lesser of
(A) its PRO RATA share of such indemnification payments (based upon the total
consideration received by PPI divided by the total consideration received by all
sellers in such Sale of the Business) and (B) the net proceeds actually received
by PPI as consideration for its Membership Interest in such Sale of the
Business, (v) neither Plastics nor any of its Affiliates or Shareholders will
receive any economic benefits (including without limitation any management,
advisory or closing fees) which are not made available in a PRO RATA basis to
PPI, (vi) if such Sale of the Business would entitle PPI to a price per
percentage unit which is less than the price per percentage unit paid by PPI
pursuant to the Securities Purchase Agreement, PPI shall not be required to
participate in such Sale of the Business unless it receives a fairness opinion
from an investment bank selected by PPI as to the fairness of the Sale of the
Business to PPI, (vii) PPI shall receive the same amount and type of
consideration on a unit-for-unit basis as each other Member in connection with
any Sale of the Business and in each case, on the same terms and conditions and
(viii) PPI shall not be required to make any out of pocket expenses in
connection with any Sale of the Business.
ss. 2.5 RIGHT OF FIRST REFUSAL. (a)(I) Prior to Xxxxxx, Xxxxxx or
Plastics (the "Offering Equityholder") effecting any Transfer (excluding a
Permitted Transfer pursuant to Section 2.3), other than a Permitted Transfer,
the Offering Shareholder shall deliver to PPI a notice (which may be the same
notice as the Share Transfer Notice or the Interest Transfer Notice except with
respect to Transfers covered by Section 2.3(I)(e), the "PPI Offer Notice") which
shall offer to sell such Equity Securities to PPI. The PPI Offer Notice shall
describe in reasonable detail the proposed Transfer including, without
limitation, the amount of interests or shares of Equity Securities to be sold,
the purchase price of each interest or share of Equity Securities to be sold,
the name and the binding commitment to purchase of the proposed transferee and a
summary of any other significant terms of such sale (the "PPI Offer"), it being
understood that if the proposed Transfer is made in connection with a Sale of
the Business or a Qualified Public Offering under Section 2.7, then Section 2.3
and the subsequent provisions
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of this Section 2.5 shall not apply. PPI shall have the right to purchase the
Equity Securities offered to be sold pursuant to the PPI Offer by delivering a
notice to the Offering Equityholder within thirty (30) days from the date of its
delivery, which notice shall state the number of offered Equity Securities
proposed to be purchased by PPI. Notwithstanding the foregoing, with respect to
Transfers by Xxxxxx or Xxxxxx which are subject to Section 2.5(a), the parties
hereto agree that if the Purchaser elects to exercise its rights contained in
this Section 2.5, then at the request of Plastics, in lieu of transferring such
shares of Common Stock to the Purchaser, the Purchaser shall have the right to
purchase an equivalent interest in the Company; PROVIDED HOWEVER, that the
Purchaser shall only be required to accept such other securities to the extent
that the sale of shares of Common Stock to the Purchaser would result in
Plastics losing its "subchapter S" tax status.
(II) Prior to PPI effecting any Transfer, other than a Permitted
Transfer, PPI shall deliver to Plastics a notice, (the "Plastics Offer Notice")
which shall offer to sell such Equity Securities to Plastics. The Plastics Offer
Notice shall describe in reasonable detail the proposed Transfer including,
without limitation, the amount of interests or shares of Equity Securities to be
sold, the purchase price of each interest of Equity Securities to be sold, the
name and the binding commitment to purchase of the proposed transferee and a
summary of any other significant terms of such sale (the "Plastics Offer"), it
being understood that if the proposed Transfer is made in connection with a Sale
of the Business or a Qualified Public Offering under Section 2.7, then Section
2.3 and the subsequent provisions of this Section 2.5 shall not apply. Plastics
shall have the right to purchase the Equity Securities offered to be sold
pursuant to the Plastics Offer by delivering a notice to PPI within thirty (30)
days from the date of its delivery, which notice shall state the number of
offered Equity Securities proposed to be purchased by Plastics.
(b) If PPI, in the case of a Transfer pursuant to Section 2.5(a)(I),
or Plastics, in the case of a Transfer pursuant to Section 2.5(a)(II), does not
elect to purchase all of the Equity Securities offered pursuant to the right of
first refusal provided in Section 2.5(a), the Offering Equityholder shall be
permitted to consummate the sale but only pursuant to the terms set forth in the
PPI Offer Notice or the Plastics Offer Notice, as the case may be, and only
within sixty (60) days of the expiration of the thirty (30) day period set forth
above. Notwithstanding anything to the contrary contained herein, PPI shall not
be entitled to effect a Transfer of any Equity Securities to a Person that is a
direct competitor of Plastics or the Company, without the prior consent of
Plastics.
(c) Notwithstanding anything to the contrary herein, the provisions of
this Section 2.5 will not apply to any Transfer which (i) in the case of a
Transfer by Xxxxxx or any of his Permitted Transferees holding shares of Common
Stock pursuant to a Transfer effected pursuant to Section 2.2(a)(i) or (ii),
when aggregated with all other Transfers of shares of Common Stock by Xxxxxx and
such Permitted Transferees, excluding Transfers effected by Xxxxxx to such
Permitted Transferees after the date hereof and excluding Transfers effected
pursuant to Section 2.2(a)(vi), includes not more than 3,992 shares of Common
Stock (as such number may be adjusted for stock splits, reverse stock splits and
stock dividends), (ii) in the case of Xxxxxx or any of his Permitted Transferees
holding shares of Common Stock pursuant
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to a Transfer effected pursuant to Section 2.2(a)(i) or (ii), when aggregated
with all other Transfers of shares of Common Stock by Xxxxxx and such Permitted
Transferrers, excluding Transfers effected by Xxxxxx to such Permitted
Transferees after the date hereof and excluding Transfers effected pursuant to
Section 2.2(a)(vi), includes not more than 9,083 shares of Common Stock (as such
number may be adjusted for stock splits, reverse stock splits and stock
dividends). In no event may Xxxxxx and his Permitted Transferees holding shares
of Common Stock pursuant to a Transfer effected pursuant to Section 2.2(a)(i) or
(ii) effect Transfers of more than 7,983 shares of Common Stock (as such number
may be adjusted for stock splits, reverse stock splits and stock dividends) held
by him on the date hereof other than pursuant to Section 2.2(a)(i), (ii) or
(vi). For the purposes of the limitations contained in this Section 2.5(c), each
sale of Membership Interests by Plastics shall be deemed to be a sale by Xxxxxx
and Xxxxxx of a number of shares of Common Stock equal to the product of (A) the
number of shares of Common Stock owned by Xxxxxx or Xxxxxx, as the case may be,
at the time of such sale, multiplied by (B) a fraction, the numerator of which
is the number of shares of Common Stock owned by Xxxxxx or Xxxxxx, as the case
may be, at the time of such sale and the denominator of which is the total
number of shares of Common Stock then outstanding, and multiplied by (C) a
fraction, the numerator of which is the Membership Percentage represented by the
Membership Interest sold by Plastics and the denominator of which is the
Membership Percentage represented by the total Membership Interest owned by
Plastics immediately prior to such sale.
ss. 2.6 GRANT OF PREEMPTIVE RIGHTS TO EQUITYHOLDERS. In the event
(and on each occasion) that the Company or Plastics (the "Issuer") shall decide
to undertake an issuance of New Securities, the Issuer will give to PPI in both
cases, and to Plastics, in the case of an issuance by the Company, written
notice (a "Preemptive Notice") of the Issuer's decision, describing the amount,
type and terms of such New Securities, the purchase price to be paid by the
purchasers of such New Securities and the general terms upon which the Issuer
has decided to issue the New Securities (including, without limitation, the
expected timing of such issuance which will in no event be more than ninety (90)
days after the date upon which such Preemptive Notice is given or less than
sixty (60) days after the date upon which such Preemptive Notice is given). PPI
in the case of an issuance by either the Company or Plastics, and Plastics in
the case of an issuance by the Company, shall have twenty (20) days from the
date on which they receive the Preemptive Notice to agree to purchase their Pro
Rata Amount of such New Securities for the Preemptive Price and upon the general
terms specified in the Preemptive Notice by giving written notice to the Issuer
and stating therein the quantity of New Securities to be purchased by any such
Person. If, in connection with such a proposed issuance of New Securities,
Plastics or PPI shall for any reason fail or refuse to give such written notice
to the Issuer within such 10-day period, Plastics or PPI shall, for all purposes
of this Section 2.6, be deemed to have refused (in that particular instance
only) to purchase any of such New Securities and to have waived (in that
particular instance only) all of its rights under this Section 2.6 to purchase
any of such New Securities and the Issuer may issue such New Securities without
further compliance with this Section 2.6 for a period of 30 days beginning
immediately after such 10-day period.
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(a) In the event a Regulated Holder has the right to acquire any
voting New Securities under this Section 2.6, but is prohibited from exercising
such right under applicable law, the Company or Plastics shall, at such
Regulated Holder's request, offer to sell to such Regulated Holder, New
Securities that do not have voting rights but otherwise have the same terms as
such voting New Securities.
*
* A portion of this document has been redacted at this point
pursuant to a request for confidential treatment filed with the SEC.
An unredacted version of this document has been filed separately with
the SEC.
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ARTICLE III
CORPORATE GOVERNANCE
ss. 3.1 BOARD OF DIRECTORS OF PLASTICS. Each Shareholder agrees to
vote all of the shares of Common Stock of Plastics held by such Shareholder and
all other voting securities over which he or it has voting control and will take
all other necessary or desirable action within his or its control (whether in
his or its capacity as a shareholder, director or officer of Plastics, or
otherwise), and Plastics shall take all necessary or desirable action within its
control, in order to elect and maintain a Board in accordance with the
provisions set forth in the bylaws of Plastics, as in effect on the date hereof.
ss. 3.2 MANAGEMENT COMMITTEE OF THE COMPANY. (a) Each Member agrees
to vote all of the Membership Interests held by such Member and all other voting
securities over which it has voting control and will take all other necessary or
desirable action within his or its control (whether in his or its capacity as a
member, manager or officer of the Company or otherwise), and the Company shall
take all necessary or desirable action within its control, in order to elect and
maintain a Management Committee in accordance with the provisions set forth in
the Operating Agreement, as in effect on the date hereof.
ss. 3.3 ELECTION. Promptly upon the execution and delivery of this
Agreement, the Shareholders shall each execute a written shareholders' consent
in the form of EXHIBIT A attached hereto for purposes of electing directors to
the Board.
ss. 3.4 VOTE BY PLASTICS SHAREHOLDERS. The parties hereby agree that
whenever any action is required by Plastics as a member of the Company, such
action shall be taken by a majority of the shareholders of Plastics voting in
accordance with their equity ownership of Plastics.
ARTICLE IV
MISCELLANEOUS
ss. 4.1 ENTIRE AGREEMENT. This Agreement, the Purchase Agreement and
the Operating Agreement contain the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior arrangements
or understandings (whether written or oral) with respect thereto.
ss. 4.2 CAPTIONS. The Article and Section captions used herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
ss. 4.3 COUNTERPARTS. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by the parties hereto and each
such executed counterpart shall be deemed to be an original instrument.
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ss. 4.4 NOTICES. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered by personal delivery, overnight courier, telecopier or registered or
certified mail, return-receipt requested and postage prepaid addressed as
follows:
If to the Company, to:
Key Plastics Technology, L.L.C.
00000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Plastics, to:
Key Plastics, Inc.
00000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to its counsel:
Xxxxxx Xxxxxxx PLLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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if to PPI to:
Paribas Principal Incorporated
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to its counsel:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000,
if to any of the Shareholders of Plastics, to the addresses set forth
opposite each of their names on SCHEDULE 1.0 attached hereto,
or to such other address as any such party hereto may, from time to time,
designate in writing to all other parties hereto, and any such communication
shall be deemed to be given, made or served as of the date so delivered or, in
the case of any communication delivered by mail, as of the date so received.
ss. 4.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Company, Plastics, PPI, the Shareholders and
their respective successors, assigns and Permitted Transferees. The rights of an
Equityholder under this Agreement may not be assigned or otherwise conveyed by
such Person except in connection with a Transfer of Securities which is in
compliance with this Agreement.
ss. 4.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO SUCH STATE'S CHOICE OF LAW PROVISIONS.
ss. 4.7 ARBITRATION. Any controversy or claim arising out of or
relating to this contract, or the breach thereof, shall be settled by
arbitration pursuant to the American Arbitration Association Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction thereof. The place of arbitration
shall be New York, New York. The arbitrator(s) shall have the power to grant any
remedy or relief that they deem just and equitable, including but not limited to
injunctive relief, whether interim and/or final. Each party hereto retains the
right to seek interim measures from
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a judicial authority, and any such request shall not be deemed incompatible with
the agreement to arbitrate or a waiver of the right to arbitrate.
ss. 4.8 BENEFITS ONLY TO PARTIES. Nothing expressed by or mentioned
in this Agreement is intended or shall be construed to give any Person, other
than the parties hereto and their respective successors or assigns and Permitted
Transferees, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective successors and
assigns and Permitted Transferees, and for the benefit of no other Person.
ss. 4.9 TERMINATION; SURVIVAL OF BENEFITS. This Agreement shall
terminate after the Company has consummated a Qualified Public Offering;
PROVIDED HOWEVER that (i) PPI shall retain its rights set forth in Section 2.3
hereof and Xxxxxx and Xxxxxx shall remain subject to the obligations set forth
in Section 2.3 hereof, until PPI no longer holds 10% of the total outstanding
equity of the Company (or its successor) and (ii) the voting agreements set
forth in Sections 3.1 and 3.2 shall continue in accordance with the terms of the
Bylaws of Plastics and the Operating Agreement of the Company, respectively,
each as in effect on the date hereof.
ss. 4.10 PUBLICITY. Except as otherwise required by applicable laws or
regulations, none of the parties hereto shall issue or cause to be issued any
press release or make or cause to be made any other public statement in each
case relating to or connected with or arising out of this Agreement or the
matters contained herein, without obtaining the prior written consent of PPI,
Plastics and the Company to the contents and the manner of presentation and
publication thereof.
ss. 4.11 CONFIDENTIALITY. Each of the parties hereto hereby agrees
that throughout the term of this Agreement it shall keep (and shall cause its
directors, officers, employees, representatives and outside advisors and its
Affiliates to keep) all non-public information relating to the Company and
Plastics (including any such information received prior to the date hereof)
confidential except information which (i) becomes known to such Shareholder or
PPI from a source, other than the Company, Plastics, either its directors,
officers, employees, representatives or outside advisors, which source is not
obligated to the Company or Plastics to keep such information confidential, (ii)
becomes generally available to the public through no breach of this Agreement by
any party hereto and (iii) with respect to any Equityholder, any information
which is requested to be delivered or disclosed by any regulatory or other
governmental authority claiming jurisdiction over any such Equityholder. Each of
the parties hereto agrees that such non-public information (a) shall be
communicated only to those of its directors, officers, employees,
representatives, outside advisors and Affiliates who need to know such
non-public information and (b) will not be used by such party or its directors,
officers, employees, representatives, outside advisors or Affiliates either to
compete with the Company or Plastics or to conduct itself in a manner
inconsistent with the antitrust laws of the United States or any State.
Notwithstanding the foregoing, a party hereto may disclose non-public
information if required to do so by a court of competent jurisdiction or by any
governmental agency; PROVIDED, HOWEVER, that prompt notice of such required
disclosure be given to
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the Company, Plastics and PPI prior to the making of such disclosure so that the
Company, Plastics and/or PPI may seek a protective order or other appropriate
remedy. In the event that such protective order or other remedy is not obtained,
the party hereto required to disclose the non-public information will disclose
only that portion which such party is advised by opinion of counsel is legally
required to be disclosed and will request that confidential treatment be
accorded such portion of the non-public information.
ss. 4.12 EXPENSES. The Company or Plastics shall reimburse each of the
respective members of its Membership Committee or Board, as the case may be, who
are not employees of the Company for their travel and out-of-pocket expenses
incurred in connection with their serving on the Membership Committee or Board,
as the case may be. Employees of the Company or Plastics who incur expenses in
connection with their attendance of meetings of the Membership Committee or
Board in the performance of their duties shall also be reimbursed in accordance
with the Company's or Plastic's usual expense reimbursement policies. The
parties hereto agree that the prevailing party or parties, as the case may be,
in any action, suit, arbitration or other proceeding arising out of or with
respect to this Agreement or the transactions contemplated hereby shall be
entitled to reimbursement of all costs of litigation, including reasonable
attorneys' fees, from the non-prevailing party. For purposes of this Section
4.12, each of the "prevailing party" and the "non-prevailing party" in any
action, suit, arbitration or other proceeding shall be the party designated as
such by the court, arbitrator or other appropriate official presiding over such
action, suit, arbitration or other proceeding, such determination to be made as
a part of the judgment rendered thereby.
ss. 4.13 AMENDMENTS; WAIVERS. No provision of this Agreement may be
amended, modified or waived without the prior written consent of PPI, Plastics,
the Company and the holders of more than fifty percent (50%) of the Common Stock
then outstanding, PROVIDED, no amendment, modification or waiver which adversely
affects the rights of any Shareholder may be made without such Shareholder's
consent.
ss. 4.14 SEVERABILITY. In case any provision in this Agreement shall
be held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this
Equityholders Agreement as of the date first set forth above.
KEY PLASTICS, INC.
By /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Tresurer
KEY PLASTICS TECHNOLOGY, L.L.C.
By /s/ Xxxx X. Xxxx
----------------------------------------
Name: Xxxx X. Xxxx
Title: Tresurer of Key Plastics, Inc.,
a member
PARIBAS PRINCIPAL INCORPORATED
By /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Partner
/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
------------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxx Mars
------------------------------------------
Xxxxxx Mars
25
SCHEDULE 1.0
Number of Shares of
Common Stock Held at
Shareholder of Plastics Notice Address Closing
----------------------- -------------- --------------------
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx Mars
Member of Plastics Membership Percentage Held at Closing
------------------ -------------------------------------
Key Plastics, Inc.
Paribas Principal Incorporated
1
