EXHIBIT 10.1
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") dated as of April 15,1996
is among LSAI HOLDING CORP., a Delaware corporation (the "Company"), and those
parties listed as signatories hereto (together with such additional signatories
as may be deemed added from time to time pursuant to Section 2.4 hereof, the
"Stockholders").
RECITALS
WHEREAS, the Stockholders are all currently holders of shares of Class L
common stock, par value $0.10 (the "Class L Shares"), of Levi Xxxxxxx Associates
Inc., a Delaware corporation ("LSAI") and are parties to an agreement
restricting transfers of those Class L Shares;
WHEREAS, each Stockholder is a party to a Stock Subscription Agreement (a
"Stock Subscription Agreement"), in which such Stockholder has committed at the
closing of the transactions contemplated thereby (the "Closing") to purchase
(the "Purchase") shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock") in an amount specified in the Stock Subscription
Agreement and at a per share price of one Class L Share (all of the shares of
such Common Stock issued and outstanding immediately following the Closing,
together with any other shares of Common Stock or other capital stock entitling
the record owner thereof to vote in elections of directors generally which are
issued by the Company during the life of this Agreement to any holder who is, by
the terms of this Agreement or otherwise required to subject such shares to this
Agreement, the "Shares");
WHEREAS, each Stockholder is, concurrently with the delivery of this
Agreement, executing and delivering a voting trust agreement (the "Voting Trust
Agreement") to which all the shares of Common Stock outstanding immediately
following the Closing will be subject, and pursuant to which all such shares
together with certain additional shares of Common Stock and other securities
specified in the Voting Trust Agreement will be represented by Voting Trust
Certificates ("Voting Trust Certificates") for as long as the Voting Trust
Agreement is in effect;
WHEREAS, LSAI Acquisition Corp., a Delaware corporation and a direct wholly
owned subsidiary of the Company ("Acquisition"), the Company, and LSAI, have
entered into an Agreement and Plan of Merger, dated as of February 8, 1996,
providing, among other things, for the merger (the "Merger") of Acquisition with
and into LSAI;
WHEREAS, it is a condition precedent to the Purchase that all Stockholders
participating therein enter into this Agreement and the Voting Trust Agreement,
with the end result being that immediately following the Purchase all the
outstanding shares of Common Stock shall be subject to this Agreement and the
Voting Trust Agreement;
WHEREAS, the Stockholders and the Company believe that, in addition to the
rights, restrictions and obligations created by the Voting Trust Agreement with
respect to the voting of shares of Common Stock and the governance of the
Company, additional rights, restrictions and obligations regarding the Shares,
and the related Voting Trust Certificates, are reasonable and appropriate to
provide for the long-term, stable and consistent ownership and governance of the
Company, and are in the best interests of the Company and the Stockholders;
NOW, THEREFORE, in consideration of the premises and of the
representations, warranties and agreements contained herein, the parties hereto
agree as follows:
ARTICLE I
THE VOTING TRUST AGREEMENT
1.1. Shares; Voting Trust Certificates. (a) So long as the Voting Trust
Agreement is in effect: (i) the trustees (the "Trustees") of the voting trust
(the "Voting Trust") shall be the owners of record of all the Shares; (ii) a
Stockholder's beneficial ownership of Shares shall be evidenced, not by
certificates of common stock, but by a Voting Trust Certificate; (iii) the
Voting Trust Certificates shall represent both the beneficial ownership of the
number of Shares specified thereon and the participation of such Shares in the
Voting Trust; and (iv) any transfer of Voting Trust
Certificates shall be deemed to effect a transfer of the Shares represented
thereby, and any transfer of Shares shall be deemed to effect a transfer of any
Voting Trust Certificates so representing.
(b) It is understood that immediately following the Closing, all Shares
then outstanding will be subject to the Voting Trust Agreement (as well as this
Agreement). The Company shall have the right to issue shares of Common Stock,
whether treasury shares or newly issued shares, in any way and to any transferee
that the Board approves, subject to the Company's Certificate of Incorporation,
By-Laws, and to applicable law (a "Company Transfer"). Any transferee who is
already a Stockholder shall be bound by this Agreement with respect to the
shares received in such Company Transfer. All other transferees who receive
shares in such a Company Transfer shall sign a Confirming Document pursuant to
Section 2.4 hereof and thereby become Stockholders. Following the Closing, in
the event the Voting Trust Agreement is no longer in effect but this Agreement
remains in effect, it is possible that shares of Common Stock will be issued or
outstanding which are "Shares" for purposes of this Agreement but are not
subject to the Voting Trust Agreement and hence not represented by Voting Trust
Certificates.
ARTICLE II
RESTRICTIONS ON TRANSFER
2.1. No Transfers. Except as explicitly permitted by this Agreement, no
Stockholder shall, directly or indirectly, sell, assign, give, pledge or
encumber or otherwise transfer (each a "Transfer"), to any person or entity, any
Shares (or any related Voting Trust Certificates), during the term of this
Agreement.
2.2. Permitted Transfers; Permitted Transferees. (a) So long as a
Stockholder complies with the terms of this Agreement in its entirety, such
Stockholder may:
(i) Transfer Shares (together with any related Voting Trust
Certificates) to (A) the spouse (or ex-spouse if the Transfer is pursuant to a
marital dissolution order), any lineal ancestor, any lineal descendant or any
adopted child (or a spouse of any of the foregoing) of such Stockholder (each a
"Related Party"), or (B) if such Stockholder is a trust, to a Related Party of
such trust's grantor;
(ii) Transfer Shares (together with any related Voting Trust
Certificates) to (A) any lineal descendant or adopted child of, or (B) any
lineal descendent or adopted child of such lineal descendent or adopted child
of, any of such Stockholder's Related Parties (for example, a stepchild of a
Stockholder) (collectively, "Other Related Parties");
(iii) Transfer Shares (together with any related Voting Trust
Certificates) to a trust of which there are no beneficiaries other than (A) such
Stockholder (the grantor), (B) Related Parties of such Stockholder or(C) Other
Related Parties of such Stockholder, provided that the Stockholder or the
beneficiaries or the trustees of such a trust have the power to act with respect
to the trust's assets without obtaining court approval;
(iv) Transfer Shares (together with any related Voting Trust
Certificates) to any charitable organization which qualifies under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"),
including any transfer in trust for the benefit of such organization, provided
that such charitable organization (A) is controlled by either such Stockholder,
a Related Party of such Stockholder or an Other Related Party of such
Stockholder ("control" here meaning majority representation by such persons on
the board of directors, trustees or comparable governing body of such
organization) or (B) has been approved by a majority of the members of the board
of directors of the Company (the "Board") present at a meeting of the Board at
which a quorum is present;
(v) Transfer Shares (together with any related Voting Trust
Certificates) to (or in trust for the benefit of) The San Francisco Foundation,
The Marin Foundation, the Jewish Community Federation of San Francisco, the
Peninsula, Marin and Sonoma Counties, the University of California at Berkeley,
Stanford University and such other public charitable organizations which (A)
qualify under Section 501(c)(3) of the Code and (B) have been approved as
transferees prior to the time of Transfer by a majority of the members of the
Board present at a meeting at which a quorum is present;
(vi) Transfer Shares (together with any related Voting Trust
Certificates) to such Stockholder's legal representative in the event such
Stockholder becomes incompetent;
(vii) Transfer Shares (together with any related Voting Trust
Certificates) to another Stockholder;
(viii) Transfer Shares (together with any related Voting Trust
Certificates) to a partnership in which the only persons or entities who are
permitted to be partners would otherwise be capable of receiving such Shares
directly in accordance with this Section 2.2(a);
(ix) Transfer Shares (together with any related Voting Trust
Certificates) to the Company or an entity owned or controlled by the Company;
and
(x) Transfer Shares (together with any related Voting Trust
Certificates) if such Transfer or transferee is approved prior to such Transfer
by two-thirds of the members of the Board present at a meeting at which a quorum
is present.
Any transfer made pursuant to this Section 2.2(a) is a "Permitted Transfer". Any
persons or entities who are capable of receiving Shares in accordance with this
Section 2.2(a) are referred to as "Permitted Transferees".
(b) Testamentary Transfers of Shares (together with any related -Voting
Trust Certificates) from a Stockholder's estate, and Transfers of Shares
(together with any related Voting Trust Certificates) made by the legal
representative of a deceased Stockholder, shall be Permitted Transfers only if
such Transfers would have been Permitted Transfers had they been made by such
Stockholder prior to his or her death.
(c) Notwithstanding Sections 2.2(a) and (b) hereof, a Transfer of Shares
(together with any related Voting Trust Certificates) shall only be a Permitted
Transfer if made in compliance with the terms of this Agreement in its entirety
and with all state and federal securities laws. Any Transfer of Shares (or any
related Voting Trust Certificates) made in violation of such laws shall also
constitute a violation of this Agreement.
2.3. Prior Notification. Any Transfer of Shares and any related Voting
Trust Certificates made pursuant to this Agreement, other than a Transfer made
pursuant to Section 2.8 hereof, shall require, at least five days prior to the
desired effective date of the Transfer, the delivery to the Company of evidence
reasonably satisfactory to the Company that the Transfer is a Permitted Transfer
and a Confirming Document (as hereinafter defined) executed by the proposed
transferee.
2.4. Transferee Bound. No Transfer of Shares or of any related Voting Trust
Certificates other than Transfers to the Company or to a Stockholder shall be
effective unless the person or entity receiving such Shares together with any
related Voting Trust Certificates) (the "Transferee"), executes an appropriate
document (a "Confirming Document"), substantially in the form attached to this
Agreement as Exhibit A, confirming that the Transferee takes those Shares and
any related Voting Trust Certificates subject to all the terms and conditions of
this Agreement (and, if related Voting Trust Certificates are transferred, the
Voting Trust Agreement), without limitation. The Confirming Document must be
delivered to and approved by the Company prior to the Transfer of Shares (and
any related Voting Trust Certificates) to that Transferee. So long as the
Transfer is otherwise made in accordance with the terms of this Agreement, the
Company shall not unreasonably withhold its approval of a proposed Confirming
Document. Upon approval of the Confirming Document (except for Confirming
Documents executed pursuant to Section 2.6 hereof) and assuming completion of
the underlying Transfer, the Transferee's signature on the Confirming Document
shall constitute an execution of a counterpart of this Agreement, and such
Transferee shall become a Stockholder signatory of this Agreement. Additionally,
if the Voting Trust Agreement is still in effect and Voting Trust Certificates
were so transferred, the Company shall, within ten days of such notification to
the Company, deliver to the Trustees a copy of the Confirming Document attesting
to the fact that the Transferee has become the Stockholder with respect to such
transferred Shares (and the related Voting Trust Certificates) and is so bound
by the Voting Trust Agreement.
2.5. Non-Conforming Transfers. The Company's Certificate of Incorporation
provides that any purported Transfer of Shares to a Transferee who is not or who
does not become a Stockholder pursuant to Section 2.4 hereof (a
"Non-Conforming Transferee," and such transfer, a "Non-Conforming Transfer"),
shall be null and void. The Company shall not register, recognize or give effect
to any such Non-Conforming Transfer, and the Company shall continue to recognize
on its books and records the transferor of such Shares as the holder thereof.
2.6. Pledges of Stock. A Stockholder may pledge his or her Shares (together
with any related Voting Trust Certificates) to a commercial bank, savings and
loan institution, brokerage firm or any other lender as security for any
indebtedness of that Stockholder to that lender; provided, however, that prior
to the pledge becoming effective, the lender must first execute and deliver to
the Company an appropriate Confirming Document, pursuant to Section 2.4 hereof,
which Confirming Document shall be subject to the Company's approval as provided
in Section 2.4 hereof.
2.7. Stock Certificate Legends. Each outstanding certificate representing
Shares (the "Stock Certificates") shall bear legends reading substantially as
follows:
The shares represented by this certificate were acquired for investment
only and not for resale. They have not been registered for resale under the
Securities Act of 1933 or any state securities laws. These shares may not
be sold, transferred, pledged, or hypothecated unless first registered
under such laws, or unless the Corporation has received evidence
satisfactory to it that registration under such laws is not required.
The shares represented by this certificate are subject to restrictions on
transfer and certain rights of the Corporation to purchase the shares on
the terms set forth in a Stockholders' Agreement initially entered into as
of April 15, 1996 among the Corporation and its stockholders, a copy of
which may be obtained from the Corporation or from the holder of this
certificate. No transfer of such shares will be made on the books of the
Corporation unless accompanied by evidence of compliance with the terms of
such Stockholders' Agreement.
The Stock Certificates shall bear any additional legend which may be appropriate
for compliance with state securities or blue sky laws. However, to the extent
such Shares are subject to the Voting Trust Agreement, only the Trustees shall
hold such certificates. Stockholders shall hold Voting Trust Certificates
substantially in the form attached as Exhibit A to the Voting Trust Agreement
with respect to Shares which are subject to the Voting Trust Agreement. Upon
termination of the Voting Trust Agreement, the Trustees shall cause all Stock
Certificates held by them to be cancelled and the Stockholders shall exchange
with the Company any Voting Trust Certificates then held for Stock Certificates
representing that number of Shares formerly represented by the Voting Trust
Certificates held thereby and, as provided in the Voting Trust Agreement, will
deliver them to the appropriate holders.
2.8. Certain Involuntary Transfers. (a) If a Stockholder involuntarily
transfers, directly or indirectly, any Shares (or any related Voting Trust
Certificates) for any reason (other than to a former spouse pursuant to a court
order with respect to the dissolution of the marriage) and the transfer is not
to a Permitted Transferee, that transferor Stockholder (the "Transferor
Stockholder") shall give written notice within 30 days after the involuntary
transfer (a "Transferor's Notice") to the Company, with a copy to the
Transferee, stating the fact that the involuntary transfer occurred, the reason
therefor, the date of the transfer, the name and address of the Transferee, the
terms of the transfer and the number of Shares (and any related Voting Trust
Certificates) acquired by the Transferee (the "Offered Securities"). An
"involuntary transfer" includes a foreclosure upon or other seizure of Shares
(together with any related Voting Trust Certificates) by a creditor of a
Stockholder, but does not include action under a pledge arrangement permitted
under Section 2.6 of this Agreement.
(b) For a period of 60 days after the date of receipt of the Transferor's
Notice or, failing receipt of such notice, 60 days after the date the Company
sends written notice to the Transferee that the transfer is an "involuntary
Transfer" subject to repurchase under this Section 2.8, the Company shall have
the irrevocable and exclusive option to buy up to all of the Offered Securities
at the price provided for in subsection (d) of this Section 2.8; provided,
however, that the Company may not purchase any of the Offered Securities unless
either:(i) the Company purchases all of the Offered Securities; or (ii) the
Transferor Stockholder consents to the purchase of less than all of the Offered
Securities. The Company's option is exercisable by delivery of a written notice
to the Transferor Stockholder within 15 days after the date of the Transferor's
Notice. The Company's rights are assignable, in whole or in part, by action of
the Board.
(c) If the Transferor's Notice is properly given, and if the Company does
not exercise its option to purchase the Offered Securities or does not purchase
all of the Offered Securities, then the involuntary transfer shall stand and the
Offered Securities shall not be subject to any further right of repurchase by
the Company, provided that the Transferee executes a Confirming Document which
is subsequently approved by the Company.
(d) The purchase price for the Offered Securities purchased under this
Section 2.8 shall be the appraised value of the Shares (with no separate value
being attributable to any Voting Trust Certificates relating to such Shares) as
of the most recent appraisal obtained by the Company if such appraisal is as of
a date not more than eighteen months prior to the involuntary transfer, and if
such an appraisal has not been obtained, the purchase price for the Offered
Securities shall be equal to the lower of the price which the involuntary
Transferee offered to pay for the Offered Securities (such price represented
either by consideration tendered or indebtedness repaid or cancelled) or the
book value of the Shares (with no separate value being attributable to any
Voting Trust Certificates relating to such Shares and with book value never to
be deemed less than the par value of the Shares, even if the Company has a
negative net worth) at the end of the preceding fiscal year of the Company, as
determined by the Chief Financial Officer of the Company.
2.9. Tag-Along Rights in Significant Transactions. For a five-year period
beginning on the Termination Date (as defined in Section 4.1), no Stockholder
may Transfer Shares (or any related Voting Trust Certificates) representing more
than 10% of the then outstanding Shares (such transferor Stockholder, the
"Selling Stockholder") to a third party other than a Permitted Transferee (a
"Third Party"), unless the Selling Stockholder shall give written notice to each
other Stockholder at least 20 days prior to such transaction and shall make all
such arrangements as are necessary such that each other Stockholder shall have
the right to participate (a "Tag-Along Right") in such sale by selling the same
percentage of such Stockholder's Shares to the Third Party as the percentage of
the aggregate number of Shares then owned by the Selling Stockholder to be sold
by the Selling Stockholder for the same consideration per Share (with no
separate consideration or value being attributable to any related Voting Trust
Certificate), and otherwise on the same terms as the Selling Stockholder sells
its Shares (with no separate consideration or value being attributable to any
related Voting Trust Certificates). Such arrangements shall include the time and
place of closing, closing deliveries and similar matters.
ARTICLE III
REGISTRATION; PURCHASE; REPRESENTATION
3.1. No Entitlements. Nothing in this Agreement (a) entitles any
Stockholder to obtain registration or qualification of any Shares (or any
related Voting Trust Certificates) under the Securities Act of 1933 (the
"Securities Act") or any state securities laws; (b) provides any Stockholder
with any right to have such Stockholder's Shares (or any related Voting Trust
Certificates) or any portion thereof purchased or redeemed by the Company or by
any other party, it being understood that any estate tax policy of the Company,
which may be in place from time to time, contemplating, among other things,
repurchase by the Company of Shares from estates of deceased Stockholders to
provide funds for payment of estate or similar taxes, will be a policy and will
not create a binding obligation on the part of the Company; or (c) entitles any
Stockholder or family group to a position on, or a representative on, the
Company's Board of Directors, or to be represented as or by a Trustee.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1. Term. The term of this Agreement shall commence at the moment the
Purchase is consummated (the "Effective Date") and shall terminate upon the
earlier of. (a) the execution and delivery of a written agreement to that effect
by the holders of record of at least two-thirds of the Shares then outstanding
(who shall, for this purpose, be deemed to be the holders of record of Shares to
the extent such Shares are not subject to the Voting Trust Agreement and shall
be the holders of record of Voting Trust Certificates relating to any Shares
which are then subject to the Voting Trust Agreement) or (b) unless extended by
agreement of the parties as contemplated by Section 4.5 hereof, the twentieth
anniversary of the Effective Date (the first occurrence of either (a) or (b)
being the "Termination Date"),
provided that in either case Section 2.9 of this Agreement shall not terminate
until the fifth anniversary of the Termination Date.
4.2. Injunctive Relief. The parties acknowledge that it will be impossible
to measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations imposed on them by this Agreement and that,
in the event of any such failure, an aggrieved person will be irreparably
damaged and will not have an adequate remedy at law. Any such person shall,
therefore, be entitled to injunctive relief, including specific performance, to
enforce those obligations, and if any action should be brought in equity to
enforce any of the provisions of this Agreement, none of the parties shall raise
the defense that there exists an adequate remedy at law.
4.3. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties to this Agreement and their respective heirs,
executors, administrators and permitted successors and assigns. This Agreement
shall apply to, and all of the foregoing parties, heirs, executors,
administrators and permitted successors and assigns shall be bound by this
Agreement with respect to, any securities issued in respect of (or in exchange
for) Shares or any related Voting Trust Certificates in connection with any
transaction to the extent such securities are of the type that would be
deposited with or retained by the Voting Trustees under Article VIII or Article
X of the Voting Trust Agreement as in effect on the date hereof (regardless of
whether the Voting Trust Agreement is terminated or amended). Without limiting
the foregoing, the parties intend for the obligations under this Agreement to
survive the death of any party or other person, including any Stockholder,
Trustee or other person, and to be specifically enforceable against any deceased
party's heirs, executors, administrators, representatives, successors or assigns
to the fullest extent permitted by law (including, without limitation,
California Probate Code Section 9680).
4.4. Governing Law. Regardless of the place of execution of this Agreement,
the domicile or residence of any Stockholder, the location of the principal
executive office of the Company, or any other fact or circumstance, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware (without regard to conflicts of laws principles). EACH PARTY
TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE STATE COURTS OF THE STATE OF DELAWARE AND THE FEDERAL COURTS LOCATED IN THE
STATE OF DELAWARE IN ANY ACTION, SUIT OR PROCEEDING ARISING IN CONNECTION WITH
THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE
BROUGHT ONLY IN SUCH COURTS (AND WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS OR ANY OTHER OBJECTION TO VENUE THEREIN); PROVIDED, HOWEVER, THAT
SUCH CONSENT TO JURISDICTION IS SOLELY FOR THE PURPOSE REFERRED TO IN THIS
PARAGRAPH AND SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE JURISDICTION
OF SUCH COURTS OR IN THE STATE OF DELAWARE OTHER THAN FOR SUCH PURPOSE. THE
PARTIES HERETO HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY
SUCH ACTION, SUIT OR PROCEEDING. Service of process on a Stockholder or
Stockholders in any action arising out of or relating to this Agreement shall be
effective if delivered to such Stockholder or Stockholders in accordance with
Section 4.8. These provisions reflect the overall objective of this Agreement to
provide for the long-term, stable and consistent ownership and governance of the
Company.
4.5. Amendment. This Agreement may be amended (including, without
limitation, an amendment extending its term generally or the duration of any of
its particular provisions) only by an instrument in writing reciting that it is
an amendment to this Agreement, and signed by the Company as approved by a
majority of the Board at a meeting at which a quorum is present and by the
holders of record of two-thirds of the outstanding Shares at the time of the
amendment (who shall, for this purpose, be deemed to be the holders of record of
Shares to the extent the Voting Trust Agreement is no longer in effect and shall
be the holders of record of Voting Trust Certificates to the extent the Voting
Trust Agreement is then in effect).
4.6. Filing; Inspection. The Company shall cause a copy of this Agreement
to be filed with the Secretary of the Company and kept with the records of the
Company. So long as this Agreement is in effect, the Company shall make this
Agreement available for inspection by any Stockholder at the principal offices
of the Company.
4.7. No Third Party Beneficiaries. This Agreement is for the benefit of
its parties and their transferees who become bound by this Agreement, and is not
intended for the benefit of any other person. This Agreement may be amended
pursuant to Section 4.5 hereof in any manner without the consent of any other
person who is not a party.
4.8. Notices. All notices given pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given if sent by registered or
certified mail, return receipt requested, by messenger, or by a nationally
recognized overnight delivery company, to the party or parties to be given such
notice at the address set forth below. Notices to Stockholders shall be sent to
the respective addresses specified by such parties on the signature pages to
this Agreement, or in such other manner as such holders may have communicated in
writing to the Company. Notices to the Company shall be addressed to:
LSAI Holding Corp.
Levi's Plaza
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Corporate Secretary
or to such other address as the Company may have communicated in writing to the
parties to this Agreement.
4.9. Entire Agreement. This Agreement contains all of the terms and
conditions agreed upon by the parties relating to its subject matter, represents
the final, complete and exclusive statement of the parties, and supersedes any
and all prior agreements, negotiations, correspondence, understandings and
communications of the parties, whether oral or written, including the 1991 Class
L Stockholders' Agreement by and among LSAI and certain of its stockholders
(which is hereby deemed amended by consent of the holders of Class L Shares as
evidenced by the execution of this Agreement so as to terminate upon the
effectiveness of this Agreement); provided that this Agreement does not
supersede, and should be enforced in conjunction with, the Voting Trust
Agreement and related Voting Trust Support Agreement, the Stock Subscription
Agreements, and the Merger Agreement.
4.10. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement. Additionally, the
execution of a Confirming Document (other than those Confirming Documents
executed pursuant to Section 2.6 hereof which shall not be deemed to constitute
execution of a counterpart to this Agreement until such time as the pledge
becomes effective), when approved, shall constitute the execution of a
counterpart to this Agreement, and the signatory thereof shall be benefited and
obligated to the same extent as an original signatory hereto. Notwithstanding
the foregoing, Xxxxxx X. Xxxx or any other duly authorized officer of the
Company may execute this Agreement by providing an appropriate facsimile
signature, and any counterpart or amendment hereto containing such facsimile
signature shall for all purposes be deemed an original instrument duly executed
by the Company. In the event that such a facsimile signature is used, Xxxxxx X.
Xxxx or such other duly authorized officer shall execute, in original, a
certificate attesting to the entry into this Agreement or any amendment hereto,
which certificate shall list the names of all of the parties to this Agreement
or amendment and shall be filed with the permanent records of the Company.
4.11. Validity of Provisions; Severability. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
LSAI HOLDING CORP.
By__________________________________________
XXXXXX X. XXXX
Chairman of the Board and Chief Executive
Officer
STOCKHOLDERS:
___________________________________________
(signature)
___________________________________________
(type or print name)
ADDRESS:
___________________________________________
___________________________________________
___________________________________________
EXHIBIT A
CONFIRMING DOCUMENT
The undersigned acknowledges and confirms that he, she or it agrees to be a
party to and to be bound by, and hereby does become a party to and is bound by,
(I) the Stockholders' Agreement, dated as of April 15, 1996, among LSAI Holding
Corp. (the "Company") and stockholders of the Company and (ii) the Voting Trust
Agreement, dated as of April 15, 1996, among Xxxxxx X. Xxxx, Xxxxx X. Xxxx, Xx.,
Xxxxx X. Xxxx, Xx., and F. Xxxxxx Xxxxxxx, as voting trustees, and stockholders
of the Company, as each of those agreements may be amended from time to time.
The undersigned further acknowledges and confirms that any and all Shares which
he, she or it may hold at this time or acquire in the future shall be subject to
all of the terms and conditions of the Stockholders' Agreement and the Voting
Trust Agreement, including, without limitation, the transfer restrictions and
legend requirements contained in the Stockholders' Agreement and the Share
deposit and voting limitations contained in the Voting Trust Agreement. This
document is intended to be a "Confirming Document" within the meaning of Section
2.4 of the Stockholders' Agreement. Capitalized terms used without definition
have the meanings given to them in the Stockholders' Agreement.
__________________________________________________
[signature of record holder]
__________________________________________________
[print full name of record holder]
__________________________________________________
[date]
ACKNOWLEDGMENT BY THE COMPANY
The Company hereby acknowledges that this document satisfies all of the
requirements for a "Confirming Document" under the Stockholders' Agreement and
approves of this "Confirming Document" pursuant to Section 2.4 of the
Stockholders' Agreement.
LSAI HOLDING CORP.
By:_____________________________________
________________________________________
[print name and title]
________________________________________
[date]
