STOCKHOLDERS AGREEMENT
Exhibit 10.23
This Stockholders Agreement (this “Agreement”) is made as of this 17thday of August,
2005 by and among First Mercury Holdings, Inc., a Delaware corporation (together with any successor
thereto, the “Company”), the Investors, the Management Common Stockholders and the
Additional Common Stockholders (each as defined below).
WHEREAS, the Restricted Stockholders (as defined below) are holders of shares and/or options
to purchase shares of the Company’s Common Stock (as defined below);
WHEREAS, the Company, the Investors, and the Management Common Stockholders have entered into
a Stock Contribution Agreement, dated as of August 17, 2005 (the “Exchange Agreement”,
pursuant to which, among other things, the Company has agreed to issue certain shares of the
Company’s capital stock to the Investors and Management Common Stockholders in exchange for certain
contributions to the Company by the Investors and Management Common Stockholders of their shares of
capital stock of First Mercury Financial Corporation, a Delaware corporation (the
“Exchange”); and
WHEREAS, the execution and delivery of this Agreement is a condition precedent to the Exchange
contemplated by the Exchange Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
SECTION 1
PRELIMINARY MATTERS
1.1 Construction of Terms. As used herein, the masculine, feminine or neuter gender,
and the singular or plural number, shall be deemed to be or to include the other genders or
numbers, as the case may be, whenever the context so indicates or requires.
1.2 Number of Shares of Stock. Whenever any provision of this Agreement calls for any
calculation based on a number of shares of Common Stock (as defined below) held by an Investor or
Restricted Stockholder, the number of shares deemed to be held by an Investor or Restricted
Stockholder shall be the total number of shares of Common Stock then owned by such Investor or
Restricted Stockholder, plus the total number of shares of Common Stock issuable upon conversion of
any Series A Preferred Stock or other convertible securities or exercise of any vested options,
warrants or subscription rights then owned by such Investor or Restricted Stockholder.
1.3 Defined Terms. The following capitalized terms, as used in this Agreement, shall
have the meanings set forth below.
“Additional Common Stockholders” means the Persons listed under the heading
“Additional Common Stockholders” on the signature pages hereto, and any other stockholder,
warrantholder or optionholder of the Company who from time to time becomes a party to this
Agreement by execution of a Joinder Agreement in substantially the form attached hereto as
Exhibit A.
“Affiliate” of any Person means a Person that, directly or indirectly, through one or
more intermediaries, controls, is controlled by or is under common control with the first mentioned
Person. A Person shall be deemed to control another Person if such first Person possesses directly
or indirectly the power to direct, or cause the direction of, the management and policies of the
second Person, whether through the ownership of voting securities, by contract or otherwise.
“Board of Directors” means the Board of Directors of the Company.
“Charter” means the Company’s Certificate of Incorporation, as amended from time to
time.
“Common Stock” means (i) the Company’s Common Stock, par value $0.01 per share, and
(ii) any other securities into which or for which any of the securities described in clause (i)
above may be converted or exchanged pursuant to a plan of recapitalization, reorganization, merger,
sale of assets or otherwise.
“Initial Public Offering” means the consummation of the first fully underwritten, firm
commitment public offering pursuant to an effective registration statement under the Act, other
than on Forms S-4 or S-8 or their then equivalents, covering the offer and sale by the Company of
its equity securities or such other event as a result of or following which the Common Stock shall
be publicly held.
“Investors” means the Persons listed under the heading “Investors” on the
signature pages hereto and any purchasers of the Company’s Series A Preferred Stock who from time
to time become a party to this Agreement by execution of a Joinder Agreement in substantially the
form attached hereto as Exhibit B.
“Investor Representatives” means the Persons designated by the Investors to serve on
the Board of Directors pursuant to Section 4.1(a).
“Management Common Stockholders” means Xxxx, the Persons listed under the heading
“Management Common Stockholders” on the signature pages hereto and any other stockholder,
warrantholder or optionholder of the Company who becomes a party to this Agreement by execution of
a Joinder Agreement in substantially the form attached hereto as Exhibit C.
“Material Adverse Effect” shall have the meaning given thereto in the Exchange
Agreement.
“Non-Affiliate” means, with respect to the Investor Group, any entity that is not an
Affiliate of Glencoe Capital, LLC. With respect to Xxxx, “Non-Affiliate” means any Person who or
which is not (a) with respect to a particular individual natural Person: (i) a member of such
individual natural Person’s Family (as defined below), including such individual natural Person, or
(ii) an Affiliate of such individual natural Person’s Family; and (b) with respect to a
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specified Person other than an individual natural Person, an Affiliate of the specified
Person. For purposes of this definition, the “Family” of an individual natural Person includes (i)
the individual natural Person in question, (ii) such individual natural Person’s spouse, and (iii)
each other individual natural Person who is related by blood, adoption or marriage to the
individual natural Person or the individual natural Person’s spouse within the second degree. For
purposes of determining whether or not an entity is an Affiliate of a natural Person, the natural
Person will be deemed to possess all rights of ownership, voting and control that are directly or
indirectly possessed by his Family.
“Person” means any individual, corporation, association, partnership, limited
liability company, joint venture, estate, trust or unincorporated organization or any government or
any agency or political subdivision thereof, and shall include, any partner, officer, director,
member or employee of such Person.
“Public Offering” shall have the meaning set forth in the Charter.
“Qualified Public Offering” means a sale of the stock of the Company (or any material
subsidiary of the Company) to the public pursuant to an offering registered under the Securities
Act and any successor statute, the aggregate price being paid for such stock being at least (i)
$75,000,000 or (ii) $65,000,000 if after completion of such offering Glencoe owns less than a
majority of the fully diluted common stock of the Company. For purposes of this Agreement,
“Glencoe” means Glencoe Capital, LLC, FMFC Holdings, LLC and each of their respective
Affiliates.
“Restricted Stockholders” means the Management Common Stockholders and the Additional
Common Stockholders.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and
the rules and regulations promulgated thereunder.
“Series A Preferred Stock” means the Series A Convertible Participating Preferred
Stock, par value $0.01 per share, together with any shares issued or issuable with respect thereto
(whether by way of a stock dividend or stock split or in exchange for or in replacement of such
shares or otherwise in connection with a combination of shares, recapitalization, merger,
consolidation or other corporate reorganization).
“Xxxx” means Xxxxxx X. Xxxx together with his affiliated entities.
“Subsidiary” means any corporation (other than the Company) in any unbroken chain of
corporations beginning with the Company if each of the corporations (other than the last
corporation in the unbroken chain) owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations in the chain.
“Transfer” means any direct or indirect transfer, donation, sale, assignment, pledge,
hypothecation, grant of a security interest in or other disposal or attempted disposal of all or
any portion of a security or of any rights, but does not include exercise or conversion of any
options or other securities convertible into or exchangeable for shares of capital stock of the
Company.
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“Transferred” means the accomplishment of a Transfer, and “Transferee” means
the recipient of a Transfer.
SECTION 2
RESTRICTIONS ON TRANSFER; RIGHTS OF FIRST REFUSAL; CO-SALE RIGHTS
2.1 Restrictions on Transfer. Except as set forth in Sections 2.3 and 2.6, each
Restricted Stockholder agrees that he, she or it will not Transfer all or any portion of the shares
of capital stock or securities convertible into or exchangeable for shares of capital stock of the
Company now owned or hereafter acquired by him, her or it (“Shares”) for a period of five
(5) years from the date hereof without the prior written consent of a majority-in-interest of the
Investors. After the expiration of such five (5) year period, each Restricted Stockholder agrees
that he, she or it will not Transfer all or any portion of the Shares except in connection with
Transfers effected pursuant to the second paragraph of this Section 2.1 or pursuant to Sections
2.2, 2.3 and 2.6 hereof to the extent applicable, in each case made strictly in accordance with the
procedures set forth therein. Each Investor shall have the right to transfer its Shares at any
time, subject to Section 2.3.
Notwithstanding the foregoing, any Restricted Stockholder, as applicable, may make the
following Transfers at any time:
(a) Transfers by a Restricted Stockholder to his or her spouse, children or grandchildren or
to a trust for the benefit of such Restricted Stockholder or his or her spouse, children or
grandchildren; provided that (x) the Transfer is exempt from the registration requirements
of the Securities Act, (y) the transfer would not subject the Company to the reporting requirements
of the Securities Exchange Act of 1934, as amended and (z) the Transferee shall have executed a
Joinder Agreement substantially in the form of Exhibit A or Exhibit C (as
applicable) attached hereto; and
(b) Transfers upon the death of a Restricted Stockholder to his or her heirs, executors or
administrators or to a trust under his or her will or Transfers between such Restricted Stockholder
and his or her guardian or conservator, provided that (x) the Transfer is exempt from the
registration requirements of the Securities Act, (y) the transfer would not subject the Company to
the reporting requirements of the Securities Exchange Act of 1934, as amended and (z) the
Transferee shall have executed a Joinder Agreement substantially in the form of Exhibit A
or Exhibit C (as applicable) attached hereto.
Any permitted Transferee described in the preceding clauses (a) or (b) shall be referred to
herein as a “Permitted Transferee.” Notwithstanding anything to the contrary in this
Agreement or any failure to execute a Joinder Agreement as contemplated hereby, Permitted
Transferees shall take any Shares so Transferred subject to all provisions of this Agreement as if
such Shares were still held by the transferor, whether or not they so agree with the transferor
and/or the Company. Without limitation of the foregoing, in connection with any otherwise
permitted Transfer of Shares under this Section 2.1 that are restricted shares and are subject to
any stock restriction agreement, any Transferee of any such Shares shall agree in writing to be
bound by
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the terms of any such stock restriction or similar agreement, including, without limitation,
any repurchase or similar right contained therein.
2.2 Right of First Refusal. In the event that any Restricted Stockholder or any
Permitted Transferee (a “Transferring Stockholder”) proposes to Transfer all of the Shares
held by such Person (a “Proposed Transaction”) to a Person other than a Permitted
Transferee (a “Proposed Transferee”), such Transferring Stockholder shall, subject to the
provisions of Section 2.3 hereof, Transfer such Shares pursuant to and in accordance with the
following provisions of this Section 2.2. No Restricted Stockholder or Permitted Transferee shall
be permitted to Transfer less than all of the Shares held by such Person.
(a) Offer Notice. Such Transferring Stockholder shall deliver written notice (the
“Offer Notice”) of its desire to consummate the Proposed Transaction to the Company and to
the Investors and shall otherwise comply with the provisions of this Section 2.2 and, if
applicable, Section 2.3. The Offer Notice shall specify (i) the number of Shares and type of
securities of the Transferring Stockholder proposed to be Transferred in the Proposed Transaction
(the “Offered Shares”), (ii) the consideration per Share to be paid for the Offered Shares
(the “Offer Price”), (iii) the identities of the Proposed Transferees and (iv) all other
material terms and conditions of the Proposed Transaction. In the event that the price set forth
in the Offer Notice is stated in consideration other than cash or cash equivalents, the Board of
Directors of the Company with the agreement of a majority-in-interest of the Investors may
determine the fair market value of such consideration, reasonably and in good faith, and the
Company or the Investors may exercise their Rights of First Refusal (as defined below) by payment
of such fair market value in cash or cash equivalents. The Transferring Stockholder’s Offer Notice
shall constitute an irrevocable offer to sell all of the Offered Shares to the Company and the
Investors on the basis described below at a purchase price per share equal to the Offer Price, and
on the same terms as set forth in the Offer Notice.
(b) Company Right of First Refusal. For a period of thirty (30) days after the giving
of the Offer Notice pursuant to Section 2.2(a) (the “Company Option Period”), the Company
shall have the first right (the “Company Right of First Refusal”) to purchase any or all of
the Offered Shares at a purchase price per share equal to the Offer Price and upon the terms and
conditions set forth in the Offer Notice. The right of the Company to purchase any or all of the
Offered Shares under this Section 2.2(b) shall be exercisable by delivering written notice of the
exercise thereof, prior to the expiration of the Company Option Period, to the Transferring
Stockholder, with a copy to the Investors, which notice shall state the number of Offered Shares
elected to be purchased by the Company. The failure of the Company to respond within the Company
Option Period shall be deemed to be a waiver of the Company’s rights under this Section 2.2(b),
provided that the Company may waive its rights under this Section 2.2(b) prior to the
expiration of the Company Option Period by giving written notice to the Transferring Stockholder,
with a copy to the Investors. The closing for any purchase of the Offered Shares by the Company
hereunder shall take place within thirty (30) days after the expiration of the Company Option
Period.
(c) Investors’ Right of First Refusal. If the Company does not elect to purchase all
of the Offered Shares pursuant to Section 2.2(b), then for a period of thirty (30) days (the
“Subsequent Option Period”) after the earlier to occur of (i) the expiration of the Company
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Option Period pursuant to Section 2.2(b) or (ii) the date upon which the Transferring
Shareholder shall have received written notice from the Company of its exercise of the Company
Right of First Refusal pursuant to Section 2.2(b) or its waiver thereof, each of the Investors
shall have the right (the “Subsequent Right of First Refusal” and, together with the
“Company Right of First Refusal”, the “Rights of First Refusal”) to accept the
offer to purchase any or all of the remaining Offered Shares for the consideration per share and on
the terms and conditions specified in the Offer Notice. Each Investor shall then have the right to
accept the offer to purchase up to that number of remaining Offered Shares as shall be equal to the
product obtained by multiplying (X) the total number of remaining Offered Shares by (Y) a fraction,
the numerator of which is the total number of shares of Common Stock owned by such Investor
on the date of the Offer Notice (as determined in accordance with Section 1.2 hereof) and the
denominator of which is the total number of shares of Common Stock then held by all of the
Investors on the date of the Offer Notice (as determined in accordance with Section 1.2 hereof),
subject to increase as hereinafter provided. The number of Offered Shares that each Investor is
entitled to purchase under this Section 2.2 shall be referred to as a “ROFR Fraction.” In
the event any Investor fails to elect to purchase its ROFR Fraction, then all the other Investors
who so elect shall have the right to accept the offer to purchase, on a pro rata basis (based on
their respective holdings of shares of Common Stock (as determined in accordance with Section 1.2
hereof)) with all other Investors who so elect (as hereinafter provided), any ROFR Fraction not
purchased by such Investor. Each Investor shall have the right to accept the Proposed Transaction
by giving notice of such acceptance to the Transferring Stockholder within the Subsequent Option
Period, which notice shall indicate the maximum number of Offered Shares subject thereto which such
Investor is willing to purchase in the event fewer than all of the Investors elect to purchase
their ROFR Fractions.
The closing for any purchase of shares by the Investors hereunder shall take place within
thirty (30) days after the expiration of the Subsequent Option Period.
(d) Sale to Proposed Transferee. In the event that the Company and/or the Investors
do not elect to exercise their respective Rights of First Refusal with respect to all of the
Offered Shares, the Transferring Stockholder may consummate the sale of the remaining Offered
Shares to the Proposed Transferee on the terms and conditions set forth in the Offer Notice,
subject to the provisions of Section 2.3. If the Transferring Stockholder’s Transfer to the
Proposed Transferee is not consummated in accordance with the terms of the Proposed Transaction
within the later of (i) ninety (90) days after the expiration of the later of the Subsequent Right
of First Refusal and the Co-Sale Option set forth in Section 2.3, (if applicable) and (ii) the
satisfaction of all applicable governmental approval or filing requirements, the Proposed
Transaction shall be deemed to lapse, and any Transfers of Shares pursuant to such Proposed
Transaction shall be deemed to be in violation of the provisions of this Agreement unless the
Company and the Investors are once again afforded the Rights of First Refusal provided for herein
with respect to such Proposed Transaction.
2.3 Co-Sale Option. In the event that any Restricted Stockholder or its Permitted
Transferees, or any Investor or its transferees (a “Co-Sale Transferor”) proposes to
Transfer any of the shares of Common Stock held by such Person to a Person other than the Company,
the Investors, an Affiliate of the Investors, or a Permitted Transferee (a “Co-Sale
Transferee”), and the Rights of First Refusal under Section 2.2 above (to the extent
applicable) are not exercised
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with respect to all of the Offered Shares proposed to be Transferred (a “Co-Sale
Transaction”), such Co-Sale Transferor may Transfer such shares of Common Stock, as applicable
(the “Co-Sale Shares”), only pursuant to and in accordance with the following provisions of
this Section 2.3.
(a) Any Co-Sale Transferor proposing to effect a Co-Sale Transaction shall first provide
written notice to the other parties hereto (the “Rights Holders”) specifying (i) the number
of Co-Sale Shares and type of securities of the Co-Sale Transferor subject to the Co-Sale
Transaction and, if applicable, a statement that the Company and the Investors have not elected to
exercise their Rights of First Refusal with respect to all of the Offered Shares, (ii) the
consideration per share to be paid for such Co-Sale Shares, (iii) the identities of the Co-Sale
Transferees and (iv) all other material terms and conditions of the Co-Sale Transaction (the
“Co-Sale Offer Notice”).
(b) Each Rights Holder shall have the right to participate in the Co-Sale Transaction on the
terms and conditions herein stated (the “Co-Sale Option”), which right shall be exercisable
within ten (10) days after receipt of the Co-Sale Offer Notice upon written notice (the
“Acceptance Notice”) to the Co-Sale Transferor. The Acceptance Notice shall indicate the
maximum number of Shares such Rights Holder wishes to Transfer (including the number of Shares it
would Transfer if one or more Rights Holders do not elect to participate in the sale) on the terms
and conditions stated in the Co-Sale Offer Notice.
(c) Each such Rights Holder shall have the right to exercise its Co-Sale Option and sell a
portion of its Shares pursuant to the Co-Sale Transaction up to a number of Shares equal to the
product obtained by multiplying (X) the total number of Co-Sale Shares to be sold to a Co-Sale
Transferee pursuant to the Co-Sale Transaction by (Y) a fraction, the numerator of which is
the total number of shares of Common Stock deemed to be held by such Rights Holder on the date of
the Co-Sale Offer Notice (as determined in accordance with Section 1.2 hereof), and the
denominator of which is the total number of shares of Common Stock held by the Co-Sale
Transferor and deemed to be held by all of the Rights Holders (as determined in accordance with
Section 1.2 hereof). To the extent one or more Rights Holders elect not to exercise their Co-Sale
Option, then the rights of the other Rights Holders (who exercise their Co-Sale Option) to sell
Shares shall be increased proportionately based on their relative holdings by the full amount of
Shares which the non-electing Rights Holders were entitled to sell pursuant to this Section 2.3.
(d) Within thirty (30) days after the date by which the Rights Holders were required to
deliver the Acceptance Notice to the Co-Sale Transferor, the Co-Sale Transferor shall notify each
participating Rights Holder of the number of Shares elected to be sold by such Rights Holder that
will be included in the sale and the date on which the Co-Sale Transaction will be consummated,
which shall be no later than the later of (i) forty-five (45) days after the date by which the
Rights Holders were required to notify the Co-Sale Transferor of their intent to exercise the
Co-Sale Option and (ii) the satisfaction of governmental approval or filing requirements, if any.
(e) Any Rights Holder may effect its participation in any Co-Sale Transaction hereunder by
delivery to the Co-Sale Transferee, or to the Co-Sale Transferor for delivery to the
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Co-Sale Transferee, of one or more instruments or certificates, properly endorsed for
Transfer, representing the Shares it elects to sell therein, provided that in the event
that the Rights Holders are required to provide any representations or indemnities in connection
with the Co-Sale Transaction (other than representations or indemnities concerning each Rights
Holder’s valid ownership of its Shares, free of all liens and encumbrances (other than those
arising under applicable securities laws) and authority, power, and right to enter into and
consummate such Co-Sale Transaction without violating any other agreement), then no Rights Holder
shall be liable for more than its pro rata share (based upon the amount of consideration received)
of any liability for misrepresentation or indemnity, and such liability shall not exceed the total
purchase price received by such Rights Holder for its Shares. At the time of consummation of the
Co-Sale Transaction, the Co-Sale Transferee shall remit directly to each such Rights Holder that
portion of the sale proceeds to which such Rights Holder is entitled by reason of its participation
therein (less any adjustments due to the conversion of any convertible securities or the exercise
of any exercisable securities).
(f) In the event that the Co-Sale Transaction is not consummated within the period required by
subparagraph (d) hereof or the Co-Sale Transferee fails timely to remit to each participating
Rights Holder its portion of the sale proceeds, the Co-Sale Transaction shall be deemed to lapse,
and any Transfers of Offered Shares or Co-Sale Shares pursuant to a Proposed Transaction, to the
extent applicable, or Co-Sale Transaction shall be deemed to be in violation of the provisions of
this Agreement unless the Transferring Stockholder or Co-Sale Transferor once again complies with
the provisions of Sections 2.2 and 2.3 hereof, to the extent applicable, with respect to such
Proposed Transaction or Co-Sale Transaction.
2.4 Prohibited Transfers. If any Transfer of Shares by a Restricted Stockholder or an
Investor is made or attempted contrary to the provisions of this Agreement, such purported Transfer
shall be void ab initio; the Company, the Investors and any other
Restricted Stockholders shall have, in addition to any other legal or equitable remedies which they
may have, the right to enforce the provisions of this Agreement by actions for specific performance
(to the extent permitted by law); and the Company shall have the right to refuse to recognize any
Transferee as one of its stockholders for any purpose.
2.5 Sales to Competitors. Except as contemplated by Section 2.6, each Restricted
Stockholder hereby agrees not to directly or indirectly Transfer any shares of Common Stock or
other securities of the Company or options in respect to any thereof to any Person whose
activities, products or services are competitive with activities, products or services of the
Company as reasonably determined by the Board of Directors as of the date of the proposed Transfer
(provided that the foregoing shall not restrict public sales registered under the
Securities Act or pursuant to Rule 144 thereunder unless the relevant Transferor has knowledge that
the buyer or buyers are such competitors). The Company may impose stop transfer instructions with
its transfer agent in order to enforce the foregoing covenants.
2.6 Drag-Along Obligations.
(a) At any time after the date hereof, if a majority-in-interest of the Investors (the
“Investor Group”) determines to sell or otherwise dispose of all or substantially all of
the assets of the Company or all or substantially all of the shares of outstanding capital stock of
the
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Company to any Non-Affiliate(s) of the Investor Group or to cause the Company to merge with or
into or consolidate with any Non-Affiliate(s) of the Investor Group in a bona fide transaction (an
“Investor Sale”), each of the other Investors and Restricted Stockholders shall be
obligated to and shall upon the written request of the Investor Group: (i) sell, transfer and
deliver, or cause to be sold, transferred and delivered, to the buyer in the Investor Sale, its
Shares on substantially the same terms approved by the Investor Group; and (ii) execute and deliver
such instruments of conveyance and transfer and take such other action, including voting their
shares in favor of such Investor Sale and executing any voting agreements, proxies, purchase
agreements, merger agreements, indemnity agreements, escrow agreements or related documents, as the
Investor Group or the buyer in the Investor Sale may reasonably require in order to carry out the
terms and provisions of this Section 2.6(a); provided, that the no Investor Sale may be
consummated prior to the one year anniversary of the date hereof without the written consent of
Xxxx. If a Restricted Stockholder fails or refuses to vote or sell his, her or its Shares as
required by, or votes or attempts to vote his, her or its Shares in contravention of this Section
2.6(a), then such party hereby appoints the Investor Group his, her or its attorney in fact, to
sell such shares in accordance with the terms of this Section 2.6(a) and grants to the Investor
Group its proxy to vote its Shares in accordance with the terms of this Section 2.6(a). To the
fullest extent permitted by applicable law, each Restricted Stockholder hereby waives any and all
appraisal rights with respect to such Investor Sale. At the closing of such Investor Sale, each
Investor and Restricted Stockholder shall deliver, against receipt of the consideration payable in
such Investor Sale, certificates representing the Shares which such party holds of record or
beneficially, with all endorsements necessary for transfer. In the event that any party fails or
refuses to comply with the provisions of this Section 2.6(a), the Company, the other Investors and
Restricted Stockholders and the buyer in such Investor Sale, at their option, may elect to proceed
with such Investor Sale notwithstanding such failure or refusal and, in such event and upon tender
of the specified consideration to any such party, the rights of any such party with respect to the
Shares of such party shall cease.
(b) At any time after the thirty (30) month anniversary of the date hereof, if Xxxx determines
to sell or otherwise dispose of all or substantially all of the assets of the Company or all or
substantially all of the shares of outstanding capital stock of the Company to any Non-Affiliate(s)
of Xxxx or to cause the Company to merge with or into or consolidate with any Non-Affiliate(s) of
Xxxx in a bona fide transaction (an “Xxxx Sale”), each of the Investors and other
Restricted Stockholders shall be obligated to and shall upon the written request of Xxxx: (i) sell,
transfer and deliver, or cause to be sold, transferred and delivered, to the buyer in the Xxxx
Sale, its Shares on substantially the same terms approved by Xxxx; and (ii) execute and deliver
such instruments of conveyance and transfer and take such other action, including voting their
shares in favor of such Xxxx Sale and executing any voting agreements, proxies, purchase
agreements, merger agreements, indemnity agreements, escrow agreements or related documents, as
Xxxx or the buyer in the Xxxx Sale may reasonably require in order to carry out the terms and
provisions of this Section 2.6(b). If a Restricted Stockholder fails or refuses to vote or sell
his, her or its Shares as required by, or votes or attempts to vote his, her or its Shares in
contravention of this Section 2.6(b), then such party hereby appoints Xxxx his, her or its attorney
in fact, to sell such shares in accordance with the terms of this Section 2.6(b) and grants to Xxxx
its proxy to vote its Shares in accordance with the terms of this Section 2.6(b). To the fullest
extent permitted by applicable law, each Restricted Stockholder and Investor hereby waives any and
all appraisal rights with respect to such Xxxx Sale. At the closing of such Xxxx
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Sale, each Investor or Restricted Stockholder shall deliver, against receipt of the
consideration payable in such Xxxx Sale, certificates representing the Shares which such party
holds of record or beneficially, with all endorsements necessary for transfer. In the event that
any party fails or refuses to comply with the provisions of this Section 2.6(b), the Company, the
Investors and other Restricted Stockholders and the buyer in such Xxxx Sale, at their option, may
elect to proceed with such Xxxx Sale notwithstanding such failure or refusal and, in such event and
upon tender of the specified consideration to any such party, the rights of any such party with
respect to the Shares of such party shall cease.
(c) The obligations of the Investors and Restricted Stockholders pursuant to this Section 2.6
are subject to the satisfaction of the following conditions: (i) without limiting the amount to
which the Investors will be entitled to receive in respect of the Series A Preferred Stock that is
or has been converted to Common Stock, in connection with such Investor Sale or Xxxx Sale, each of
the Investors shall at least be entitled to any liquidation preferences in cash (including the
Makewhole Amount as defined in the Charter) otherwise applicable to such Investor Sale or Xxxx Sale
as set forth in the Charter as in effect immediately prior to such Sale (giving effect to any
applicable orders of priority); (ii) each Investor and Restricted Stockholder, in connection with
an Investor Sale or Xxxx Sale, shall receive the same form of consideration and the same amount of
consideration per share of the Company’s capital stock held by such Investor or Restricted
Stockholder as such Investor or Restricted Stockholder would have received if such aggregate
consideration had been distributed by the Company in complete liquidation pursuant to the rights
and preferences set forth in the Company’s Charter as in effect immediately prior to such sale or
exchange; and (iii) in the event that the Investors or the Restricted Stockholders are required to
provide any representations or indemnities in connection with the Investor Sale or Xxxx Sale (other
than representations or indemnities concerning each Investor’s and Restricted Stockholder’s valid
ownership of its Shares, free of all liens and encumbrances (other than those arising under
applicable securities laws) and authority, power, and right to enter into and consummate such
purchase or merger agreement without violating any other agreement), then no Investor or Restricted
Stockholder shall be liable for more than its pro rata share (based upon the amount of
consideration received) of any liability for misrepresentation or indemnity, and such liability
shall not exceed the total purchase price received by such Investor or Restricted Stockholder for
its Shares.
(d) The Company shall use, and shall cause its directors, officers and employees to use, its
and their respective best efforts to effectuate any Investor Sale or Xxxx Sale on the terms
reasonably negotiated by the Investor Group, in compliance with the terms of this Agreement.
2.7 Option Exercise. Notwithstanding anything herein to the contrary, the Shares
resulting from the exercise of currently outstanding stock options shall be permitted to be pledged
as security for loans obtained to finance such exercise, and any pledgee thereof may exercise its
rights under such pledge and sell or otherwise Transfer such pledged Shares to any Person at any
time, provided that (a) any such Transfer is exempt from the registration requirements of the
Securities Act, (b) any such Transfer would not subject the Company to the reporting requirements
of the Securities Exchange Act of 1934, as amended, (c) the Transferee shall have executed a
Joinder Agreement substantially in the form of Exhibit A or Exhibit C (as
10
applicable) attached hereto, and (d) any such Transfer shall be subject to the Rights of First
Refusal of Section 2.2 of this Agreement.
SECTION 3
RIGHTS TO PURCHASE
3.1 Right to Participate in Certain Sales of Additional Securities.
(a) Preemptive Rights. The Company agrees that it will not, nor will it permit any
Subsidiary of the Company to sell or issue any shares of capital stock of the Company or any
Subsidiary, or other equity or debt securities convertible into or exchangeable for capital stock
of the Company or any Subsidiary, or options, warrants or rights carrying any rights to purchase
capital stock of the Company or any Subsidiary (the “Offered Securities”) unless the
Company first submits written notice (the “Preemptive Rights Notice”) to Xxxx identifying
the terms of the proposed sale (including the price, number or aggregate principal amount of
securities and all other material terms), and offers to Xxxx the opportunity to purchase his Pro
Rata Allotment (as hereinafter defined) of the Offered Securities (subject to increase for
over-allotment if Xxxx does not fully exercise his rights) on terms and conditions, including
price, not less favorable than those on which the Company proposes to sell such securities to a
third party or parties. The Company’s offer to Xxxx shall remain open and irrevocable for a period
of thirty (30) days during which time Xxxx may accept such offer by written notice to the Company
setting forth the maximum number of shares or other securities to be purchased by Xxxx. Any
Offered Securities so offered which are not purchased by Xxxx pursuant to such offer may be sold by
the Company, but only on the terms and conditions set forth in the initial offer to Xxxx, at any
time within one hundred twenty (120) days following the termination of the above-referenced thirty
(30)-day period. For the purposes of this Section 3.1, Xxxx’x “Pro Rata Allotment” of
securities shall be based on the ratio which the shares of Common Stock held by Xxxx (as determined
in accordance with Section 1.2) bears to the total number of shares of Common Stock outstanding on
the date of the Preemptive Rights Notice (as determined in accordance with Section 1.2). The
closing of any purchase by Xxxx of Offered Securities under this Section shall occur simultaneously
with or promptly following the closing of the sale or issuance of Offered Securities by the Company
or any Subsidiary.
(b) Excluded Shares. Notwithstanding Section 3.1(a) above, the right to purchase the
Offered Securities shall be inapplicable with respect to any issuance or proposed issuance by the
Company of (i) shares issued to the public pursuant to a Public Offering, (ii) shares of Common
Stock issued pursuant to the exercise of options, warrants or other purchase rights outstanding as
of the date the first share of Series A Preferred Stock is issued (the “Series A Issuance
Date”) and up to 5,000 shares of Common Stock and/or options, warrants or other purchase rights
(and the issuance of Common Stock upon exercise thereof) (as appropriately adjusted for stock
splits, stock dividends, recapitalizations and the like) issued after the Series A Issuance Date to
its officers, directors, employees and consultants pursuant to stock and options plans approved by
the Board of Directors, (iii) any additional shares of Common Stock and/or options, warrants or
other purchase rights (and the issuance of Common Stock upon exercise thereof) issued to the
Company’s officers, directors, employees or consultants outside of the Company’s existing stock and
option plans; provided that each such issuance is approved by
11
a majority of the members of the Company’s Board of Directors, (iv) shares of Common Stock
upon conversion of the Series A Preferred Stock, (v) securities issued as a result of any stock
split, stock dividend, combination of the Common Stock or similar recapitalization by the Company,
and (vi) shares of Common Stock issued for consideration other than cash in connection with an
acquisition by the Company of another entity’s business or assets, which is approved by a majority
of the members of the Board of Directors.
SECTION 4
BOARD OF DIRECTORS; VOTING; EXECUTIVE COMMITTEE
4.1 Board Composition.
(a) Each Investor, Restricted Stockholder and Permitted Transferee agrees to vote all of his,
her or its Shares having voting power (and any other Shares over which he, she or it exercises
voting control) in connection with the election of directors of the Company and to take such other
actions as are necessary so as to fix the number of members of the Board of Directors at five (5)
and to elect and continue in office as directors the following:
(i) so long as Xxxx owns 6.25% or more of the shares of Common Stock on a fully diluted basis
(assuming the conversion, exchange, or exercise of all securities convertible into or exchangeable
or exercisable for Common Stock), one (1) individual designated by Xxxx; and
(ii) four (4) individuals designated by a majority-in-interest of the Investors or, in the
event that Xxxx owns less than 6.25% of the shares of Common Stock on a fully diluted basis
(assuming the conversion, exchange, or exercise of all securities convertible into or exchangeable
or exercisable for Common Stock), five (5) individuals designated by a majority-in-interest of the
Investors (the “Investor Representatives”).
(b) Each Investor, Restricted Stockholder and Permitted Transferee agrees to vote all of his,
her or its Shares having voting power (and any other Shares over which he, she or it exercises
voting control) for the removal of any director upon the request of the party nominating or
designating such director and for the election to the Board of Directors of the Company of a
substitute nominated by such party in accordance with the above provisions. Each Investor,
Restricted Stockholder and Permitted Transferee further agrees to vote all of his, her or its
Shares having voting power (and any other Shares over which he, she or it exercises voting control)
in such manner as shall be necessary or appropriate to ensure that any vacancy on the Board of
Directors of the Company occurring for any reason shall be filled only in accordance with the
provisions of this Section 4. If an Investor, Restricted Stockholder or Permitted Transferee fails
or refuses to vote his, her or its Shares as required by, or votes or attempts to vote his, her or
its Shares in contravention of this Section 4, then such party hereby grants to the Company its
proxy to vote its Shares in accordance with this Section 4.
(c) The Company shall pay each director for his or her reasonable travel and other reasonable
expenses incurred in connection with attending meetings of the Board of Directors or otherwise in
connection with his or her services as a member of the Board of directors, including attending
meetings of any committees of the Board of Directors. All
12
directors who are not employees of the Company will be equally compensated for their services
as a member of the Board of Directors. The Charter and Bylaws of the Company will provide for
exculpation and indemnification of the directors and limitations on the liability of the directors
to the fullest extent permitted under applicable state law.
4.2 Frequency of Meetings. The Board of Directors shall meet on at least a quarterly
basis unless otherwise agreed by a majority of the members of the Board of Directors, which
majority shall include the Investor Representatives.
4.3 Board Observation Rights. In addition to the rights set forth in Section 4.1, two
representatives designated by a majority-in-interest of the Investors shall be entitled to receive
all notices and materials provided to the Board of Directors and to attend all meetings of the
Board of Directors as observers. In the event that disclosure of any information to or attendance
at any meeting or portion thereof by an observer could reasonably be expected to adversely affect
the attorney-client privilege between the Company and its counsel, the Company reserves the right
to withhold such information from all of the observers or to exclude all observers from such
meeting or portion thereof. The Company reserves the right to withhold any information or to
exclude any observer from a meeting or portion thereof if in the Company’s reasonable determination
access to such information or attendance at such meeting would create a conflict of interest for
the observer in light of the observer’s other business interests.
4.4 Subsidiary Boards. Upon written request of the Investors or Xxxx, the Board of
Directors of each Subsidiary of the Company (each a “Subsidiary Board”) shall be comprised
of individuals designated in the same relative proportions as set forth in Section 4.1.
4.5 Voting Regarding Charter Amendment. Each Investor, Restricted Stockholder and
Permitted Transferee agrees to vote all of his, her or its Shares having voting power (and any
other Shares over which he, she or it exercises voting control) in favor of any amendment to the
Charter proposed by the Investor solely for purposes of amending the Conversion Price, the Series A
Dividend Rate or Makewhole Rate (as such terms are defined in the Charter) in accordance with
Section 1.4 or 7.3 of the Purchase Agreement, as applicable. If a Restricted Stockholder or a
Permitted Transferee fails or refuses to vote his, her or its Shares as required by, or votes or
attempts to vote his, her or its Shares in contravention of this Section 4.5, then such party
hereby grants to the Investor its proxy to vote its Shares in accordance with this Section 4.
SECTION 5
“MARKET STAND-OFF” AGREEMENT
In connection with an Initial Public Offering, each Investor, Restricted Stockholder and
Permitted Transferee, if requested in good faith by the Company and the managing underwriter of the
Company’s securities, shall agree not to, directly or indirectly, offer, sell, pledge, contract to
sell (including any short sale), grant any option to purchase or otherwise Transfer or dispose of
any securities of the Company held by them (except for any securities sold pursuant to such
registration statement or any securities purchased in the Initial Public Offering or in the open
market thereafter) or enter into any Hedging Transaction (as defined below) relating to any
securities of the Company for a period not to exceed one hundred
13
eighty (180) days following the effective date of the applicable registration statement for
such public offering; provided, that the Investors’ obligations under this Section 5 shall
be conditioned upon all officers, directors and holders of one percent (1%) or more of the
outstanding capital stock of the Company entering into similar agreements with the Company and such
managing underwriter. For purposes of this Section 5, “Hedging Transaction” means any
short sale (whether or not against the box) or any purchase, sale or grant of any right (including
without limitation, any put or call option) with respect to any security (other than a broad-based
market basket or index) that includes, relates to or derives any significant part of its value from
the Company’s Common Stock.
SECTION 6
GENERAL
6.1 Amendments, Waivers and Consents. For the purposes of this Agreement and all
agreements executed pursuant hereto, no course of dealing between or among any of the parties
hereto and no delay on the part of any party hereto in exercising any rights hereunder or
thereunder shall operate as a waiver of the rights hereof and thereof. This Agreement may be
amended, modified or terminated and any provision hereof may be waived by the joint written consent
of the Company, a majority-in-interest of the Restricted Stockholders and a majority-in-interest of
the Investors, in each case based on their respective holdings of shares of Common Stock (as
determined in accordance with Section 1.2 hereof), provided, that any party may waive any
provision hereof intended for its benefit by written consent; provided further that
the provisions of Section 3 hereof may only be amended, modified or waived by the written consent
of the Company, Xxxx and a majority-in-interest of the Investors. Any amendment, modification,
termination or waiver effected in accordance with this Section 6.1 shall be binding upon all
parties even if they do not execute such written consent. Notwithstanding the foregoing, no
amendment or modification to this Agreement that adversely affects Xxxx or the Investors may be
made without the prior written consent of Xxxx or all of the Investors, as applicable.
6.2 Legend on Securities. The Company, each of the Investors and each of the
Restricted Stockholders acknowledge and agree that substantially the following legend shall be
typed on each certificate evidencing any of the securities held at any time by an Investor or a
Restricted Stockholder:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF A RESTRICTED STOCKHOLDERS
AGREEMENT DATED AS OF AUGUST 17, 2005, AS AMENDED FROM TIME TO TIME. A COMPLETE AND
CORRECT COPY OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
14
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES OR BLUE SKY LAWS AND MAY NOT BE
OFFERED, SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT (1) PURSUANT TO A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER THE ACT OR
(2) PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT RELATING TO THE
DISPOSITION OF SECURITIES AND (3) IN ACCORDANCE WITH APPLICABLE STATE SECURITIES AND BLUE SKY
LAWS.
6.3 Notices and Demands. Any notice or demand which, by any provision of this
Agreement or any agreement, document or instrument executed pursuant hereto or thereto, except as
otherwise provided therein, is required or provided to be given shall be deemed to have been
sufficiently given and received for all purposes when delivered by hand or facsimile or five (5)
business days after being sent by certified or registered mail, postage and charges prepaid, return
receipt requested, or two (2) business day after being sent by overnight delivery providing receipt
of delivery, to:
(a) If to the Company:
First Mercury Holdings, Inc.
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
or at such other address designated by the Company to the Investors in writing.
(b) If to the Investors:
c/o Glencoe Capital, LLC
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
or at such other address designated by the Investors to the Company in writing,
with a copy to:
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
(c) if to the Management Common Stockholders or the Additional Common Stockholders at the
mailing addresses as shown on the records of the Company.
15
6.4 Remedies; Severability. It is specifically understood and agreed that any breach
of the provisions of this Agreement by any person subject hereto will result in irreparable injury
to the other parties hereto, that the remedy at law alone will be an inadequate remedy for such
breach, and that, in addition to any other remedies which they may have, such other parties may
enforce their respective rights by actions for specific performance in federal or state courts in
the State of Illinois (to the extent permitted by law). Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be deemed prohibited or invalid under such applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision or the other
provisions of this Agreement.
6.5 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original but all of which shall constitute but one and the same
instrument. One or more counterparts of this Agreement may be delivered via telecopier, with the
intention that they shall have the same effect as an original counterpart hereof.
6.6 Effect of Heading. The Section headings herein are for convenience only and shall
not affect the construction hereof.
6.7 Governing Law. This agreement shall be deemed a contract made under the laws of
the State of Delaware and together with the rights and obligations of the parties hereunder, shall
be construed under and governed by the laws of the State of Delaware, without giving effect to its
conflict of laws principles.
6.8 Jurisdiction; Venue; Waiver Of Jury Trial.
(a) Each of the parties to this Agreement hereby agrees that the state and federal courts of
the State of Illinois shall have exclusive jurisdiction to hear and determine any claims or
disputes between the parties hereto pertaining directly or indirectly to this Agreement, and all
documents, instruments and agreements executed pursuant hereto or thereto, or to any matter arising
herefrom (unless otherwise expressly provided for herein or therein). To the extent permitted by
law, each party hereby expressly submits and consents in advance to such jurisdiction in any action
or proceeding commenced by any of the other parties hereto in any of such courts, and agrees that
service of such summons and complaint or other process or papers may be made by registered or
certified mail addressed to such party at the address to which notices are to be sent pursuant to
this Agreement. Each of the parties waives any claim that Chicago, Illinois is an inconvenient
forum or an improper forum based on lack of venue. The choice of forum set forth in this Section
shall not be deemed to preclude the enforcement of any judgment obtained in such forum or the
taking of any action to enforce the same in any other appropriate jurisdiction.
(b) Each party hereto hereby waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each party hereto (i) certifies that no
representative, agent or attorney of the other party has represented, expressly or otherwise, that
the other party would not, in the event of litigation, seek to enforce the foregoing
16
waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter
into this Agreement by, among other things, the mutual waivers and certifications in this Section.
6.9 Integration. This Agreement, including the exhibits, documents and instruments
referred to herein or therein, constitutes the entire agreement, and supersedes all other prior
agreements and understandings, both written and oral, among the parties with respect to the subject
matter hereof.
6.10 Successors and Assigns. This Agreement shall be binding upon and notice to the
benefit of the respective successors and permitted assigns of the parties hereto as contemplated
herein, and any successor to the Company by way of merger or otherwise shall specifically agree to
be bound by the terms hereof as a condition of such successor. Neither this Agreement nor the
rights provided hereunder may be assigned by any Restricted Stockholder without the prior written
consent of a majority-in-interest of the Investors, and without such prior written consent any
attempted assignment shall be null and void. The rights of the Investors hereunder are
transferable to each Transferee to whom any shares of Series A Preferred Stock or Common Stock are
Transferred, provided that such Transferee must consent in writing to be bound by the terms
and conditions of this Agreement in order to acquire the rights granted hereunder.
6.11 Adjustment. All references to share amounts and prices herein shall be equitably
adjusted to reflect any stock split, combination, reorganization, recapitalization,
reclassification, stock distribution, stock dividend or similar event affecting the capital stock
of the Company.
6.12 Term. The provisions contained in Sections 2 (other than Section 2.3) and 3 of
this Agreement shall terminate immediately prior to the closing by the Company of a Public Offering
and the provisions of Section 2.3 shall terminate immediately prior to the closing by the Company
of a Qualified Public Offering.
[Signature Pages Follow]
17
IN WITNESS WHEREOF, the parties have executed this Stockholders Agreement as of the date first
above written.
| COMPANY: FIRST MERCURY HOLDINGS, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | President | |||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| INVESTORS: | ||||||||
| FMFC HOLDINGS, LLC | ||||||||
| By: Glencoe Capital, LLC | ||||||||
| Its: Manager | ||||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||||
| Name: | Xxxxx Xxxxxxx | |||||||
| Title: | Vice President | |||||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER: | ||||
| /s/ Xxxxxx X. Xxxx | ||||
| Xxxxxx X. Xxxx, individually, and on behalf of the | ||||
| Xxxxxx X. Xxxx Revocable Trust | ||||
| Address: | 0 Xxxxx Xxxx | |||
| Xxxxxxxxx 0 | ||||
| Xxxxxxx Xxxxx, Xxxxxxx 00000 | ||||
| Copy to: | Spilkin, Xxxxxxx & Xxxxxx, P.C. | |||
| 00000 Xxxxxxxxxxxx Xxx. | ||||
| Xxxxxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxx X. Xxxxxxx | ||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER | ||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx, individually, and on behalf of the | ||||
| Xxxxxxx X. Xxxxxx Revocable Trust | ||||
| Address: | 00000 Xxxx Xxxxx Xxxxx | |||
| Xxxxxxxxxx, XX 00000 | ||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER | ||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
| Address: | 000 XxXxxxxx | |||
| Xxxxxxxxxx, XX 00000 | ||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER | ||||
| /s/ Xxxx X. Xxxxx | ||||
| Xxxx X. Xxxxx | ||||
| Address: | 00000 Xxxxxxxxx Xx. | |||
| Xxxxxx, XX 00000 | ||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER | ||||
| /s/ Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx | ||||
| Address: | 0000 Xxxxxxxxxx Xxxxx | |||
| Xxxxxx Xxx., XX 00000 | ||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER | ||||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
| Address: | 00000 Xxxxxxx Xxxxxx | |||
| Xxxxxxxxxx Xxxxx, XX 00000 | ||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER | ||||
| /s/ Xxxxxx Xxxxxxx | ||||
| Xxxxxx Xxxxxxx | ||||
| Address: | 00000 Xxxxxx Xxxxx Xx. X. | |||
| Xxxxxx, XX 00000 | ||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER | ||||||
| /s/ Xxxxx X. Xxxxxxxx | ||||||
| Xxxxx X. Xxxxxxxx | ||||||
| Address: | 0000 Xxxxxxx Xxxx | |||||
| Xxxxxxxx, XX 00000 | ||||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| MANAGEMENT COMMON STOCKHOLDER: | ||||||
| 4SFW, L.L.C. | ||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||
| By: | Xxxxxxx X. Xxxxxx | |||||
| Its: | Member | |||||
| Address: | c/o Xxxxx Xxxxxxx | |||||
| X.X. Xxx 0000 | ||||||
| Xxxxxxxxxx, XX 00000-0000 | ||||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
| ADDITIONAL COMMON STOCKHOLDERS: | ||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
EXHIBIT A
Form of Additional Common Stockholder Joinder Agreement
The undersigned hereby agrees, effective as of the date hereof, to become a party to that
certain Stockholders Agreement (the “Agreement”) dated as of [___] and as may be
amended from time to time by and among First Mercury Holdings, Inc. (the “Company”) and the
other parties named therein and, for all purposes of the Agreement, the undersigned shall be
included within the term “Additional Common Stockholder” (as defined in the Agreement). The
address and facsimile number to which notices may be sent to the undersigned is as follows:
| Name: | ||||||||
| Address: | ||||||||
| Facsimile No: | ||||||||
| Signature: | ||||||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
EXHIBIT B
Form of Investor Joinder Agreement
The undersigned hereby agrees, effective as of the date hereof, to become a party to that
certain Stockholders Agreement (the “Agreement”) dated as of [___] and as may be
amended from time to time by and among First Mercury Holdings, Inc. (the “Company”) and the
other parties named therein and, for all purposes of the Agreement, the undersigned shall be
included within the term “Investor” (as defined in the Agreement). The address and facsimile
number to which notices may be sent to the undersigned is as follows:
| Name: | ||||||||
| Address: | ||||||||
| Facsimile No: | ||||||||
| Signature: | ||||||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
EXHIBIT C
Form of Management Common Stockholder Joinder Agreement
The undersigned hereby agrees, effective as of the date hereof, to become a party to that
certain Stockholders Agreement (the “Agreement”) dated as of [___] and as may be
amended from time to time by and among First Mercury Holdings, Inc. (the “Company”) and the
other parties named therein and, for all purposes of the Agreement, the undersigned shall be
included within the term “Management Common Stockholder” (as defined in the Agreement). The
address and facsimile number to which notices may be sent to the undersigned is as follows:
| Name: | ||||||||
| Address: | ||||||||
| Facsimile No: | ||||||||
| Signature: | ||||||||
[SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT]
