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EXHIBIT 10.08
BOARD REPRESENTATION AGREEMENT
BOARD REPRESENTATION AGREEMENT, dated as of January 4, 1996
(this "Agreement") among AMERICAN SECURITIES CAPITAL PARTNERS, L.P., a Delaware
limited partnership ("ASCP"), J. XXXXXXXXXXX XXXXXXX, an individual ("Xxxxx
Xxxxxxx"), XXXXX XXXXXXX, an individual ("Xxxxx Xxxxxxx"; together with Xxxxx
Xxxxxxx, the "Chocolas"), and CTB Holdings, Inc., a Delaware corporation (the
"Corporation").
RECITALS
WHEREAS, on the date hereof, 388,000 shares of the common
stock of the Corporation ("Shares") are owned of record and beneficially by
entities controlled by ASCP ("ASCP Affiliates") and 190,519 Shares are owned of
record and beneficially by the Chocolas; and
WHEREAS, it is in the best interests of the parties hereto
that certain aspects of ASCP's and the Chocolas' relationship with regard to the
Corporation be set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual terms, conditions and agreements set forth herein, the parties hereto
hereby agree as follows:
ARTICLE I
BOARD OF DIRECTORS
SECTION 1.1 Board of Directors. The board of directors of the
Corporation (the "Board") shall initially be composed of five directors. Each
director shall have one vote. A quorum will be present if at least three
directors are present at a meeting. At any meeting at which a quorum is present,
the affirmative vote of a majority of the Board will be required in order for
the Corporation to take any action.
SECTION 1.2 Election of Directors. (a) Upon each election of
directors of the Board (except in the case of replacement directors, which is
governed by paragraph (b) below), so long as the Chocolas beneficially own at
least 20% of the outstanding Shares, the Chocolas will have the right to
nominate two directors, of which one shall be Xxxxx Xxxxxxx. For so long as the
Chocolas are entitled to nominate directors to the Board pursuant to this
Section 1.2, ASCP shall cause the ASCP Affiliates to vote all Shares owned by
them in favor of the Chocolas' nominees and take all other action to cause the
Chocolas' nominees to be elected to the Board.
(b) Each director shall hold office until death, resignation,
retirement or removal by the party that nominated such director. Notwithstanding
anything contained in this Section 1.2(b) to the contrary, immediately upon the
Chocolas no
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longer having the right to nominate directors to the Board, ASCP shall have the
right to remove any directors from the Board and to designate his or her
successor by giving written notice thereof to the Board.
ARTICLE II
TERMINATION
SECTION 2.1 Termination. This Agreement shall terminate on the
earliest to occur of any of the following events: (i) when ASCP (or partners of
ASCP) or ASCP Affiliates no longer own at least 20% of the outstanding Shares;
or (ii) when the Chocolas no longer have the right to nominate directors to the
Board.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Entire Agreement. This Agreement sets forth the
entire agreement and understanding between the parties as to the subject matter
hereof. Except as otherwise provided expressly herein, no modification,
amendment or supplement to this Agreement shall be effective for any purpose
unless in writing and signed by the parties hereto.
SECTION 3.2 Binding Effect; Assignments.(a) This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
(b) The Chocolas hereby acknowledge that: (i) neither this
Agreement nor the rights granted or obligations assumed hereunder shall be
assigned or transferred, by operation of law or otherwise, by them, without the
prior written consent of ASCP, and any purported assignment or transfer by them
in contravention of this Section 3.2 shall be void and without effect; and (ii)
ASCP may assign or transfer, by operation of law or otherwise, this Agreement
and the rights granted and obligations assumed hereunder.
SECTION 3.3 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware.
SECTION 3.4 No Waiver; Remedies. No failure on the part of any
party hereto to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or future exercise thereof or the exercise of any
other right. The remedies herein are cumulative and not exclusive of any
remedies provided by law.
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SECTION 3.5 Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopy) and
shall be given:
(a) if to ASCP or the Corporation to:
c/o American Securities Capital Partners, L.P,
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(b) if to the Chocolas:
c/o J. Xxxxxxxxxxx Xxxxxxx
CTB, Inc.
State Road 00 Xxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000
With a copy to:
Yoder, Ainlay, Ulmer a Buckingham
X.X. Xxx 000
Xxxxxx, Xxxxxxx 00000
Attention; Xxxxxx Xxxx
or at such other address as any party shall have specified by notice in writing
to the others.
SECTION 3.6 Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 3.7 Counterparts. This Agreement may be executed in
counterparts, each of which when executed and delivered shall be an original and
all of which when taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective, duly authorized officers, as of
the day and year first above written.
AMERICAN SECURITIES CAPITAL
PARTNERS, L.P.
By its General Partner
AMERICAN SECURITIES CAPITAL
PARTNER GP CORP.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Principal
/s/ J. Xxxxxxxxxxx Xxxxxxx
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J. XXXXXXXXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
CTB HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Principal
