EXECUTION COPY
STOCKHOLDERS' AGREEMENT
by and among
TAS HOLDING, INC.
and
THE STOCKHOLDERS NAMED HEREIN
Dated as of April 10, 2006
TABLE OF CONTENTS
PAGE
1. DEFINITIONS. ............................................................1
2. REPRESENTATIONS OF STOCKHOLDERS..........................................8
2.1 AUTHORIZATION............................................................8
2.2 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS...............................8
2.3 CONSENTS.................................................................8
2.4 INVESTMENT...............................................................8
3. TRANSFER OF SHARES.......................................................9
3.1 GENERAL RESTRICTION; PERMITTED TRANSFERS.................................9
3.2 NOTICE PRIOR TO SALE....................................................10
3.3 TAG ALONG RIGHTS........................................................11
3.4 BRING-ALONG RIGHT.......................................................12
3.5 COSTS...................................................................13
3.6 CLOSINGS................................................................14
3.7 PURCHASE UPON EXERCISE OF REGISTRATION RIGHTS...........................14
4. ALL TRANSFERS IN COMPLIANCE WITH LAW AND SUBJECT TO
THIS AGREEMENT; SUBSTITUTION OF TRANSFEREE..............................15
4.1 VIOLATION OF TRANSFER PROVISIONS........................................15
4.2 COMPLIANCE WITH LAW; SUBSTITUTION OF TRANSFEREE.........................15
5. ISSUANCES OF CAPITAL STOCK BY THE COMPANY; PREEMPTIVE RIGHT.............15
5.1 PREEMPTIVE RIGHT........................................................15
5.2 CLOSING OF NEW ISSUANCE.................................................16
6. GOVERNANCE..............................................................16
6.1 BOARD COMPOSITION; CORPORATE ACTION.....................................16
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PAGE
6.2 TERMINATION OF SECTION 6.1..............................................18
6.3 IRREVOCABLE PROXY.......................................................19
6.4 LIABILITY INSURANCE.....................................................19
7. STOCK CERTIFICATE LEGEND................................................19
8. MANAGEMENT STOCKHOLDERS.................................................20
8.1 CALL BY THE COMPANY TO THE MANAGEMENT STOCKHOLDERS......................20
8.2 PROHIBITED PURCHASES....................................................20
8.3 CLOSING; PAYMENT........................................................21
8.4 MANAGEMENT SALES NOT SUBJECT TO SECTION 3.2
PROCEDURES; TRANSFERS BY MANAGEMENT STOCKHOLDERS
TO PERMITTED TRANSFEREES................................................22
9. MISCELLANEOUS...........................................................22
9.1 ADDITIONAL PARTIES......................................................22
9.2 NOTICES.................................................................22
9.3 NO THIRD-PARTY BENEFICIARIES............................................22
9.4 REFERENCES TO THIS AGREEMENT; HEADINGS; SCOPE...........................22
9.5 VALIDITY OF AGREEMENT; SEVERABILITY.....................................23
9.6 FURTHER ACTION..........................................................23
9.7 GOVERNING LAW...........................................................23
9.8 COUNTERPART EXECUTION...................................................23
9.9 NO IMPLIED WAIVER.......................................................23
9.10 JURISDICTION............................................................23
9.11 AMENDMENTS..............................................................24
9.12 SUCCESSORS AND ASSIGNS..................................................24
9.13 ENTIRE AGREEMENT........................................................24
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9.14 ESCROW..................................................................24
10. TERMINATION.............................................................24
10.1 TERMINATION AS TO STOCKHOLDER...........................................24
10.2 TERMINATION OF AGREEMENT................................................25
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STOCKHOLDERS' AGREEMENT (the "Agreement"), dated as of April 10, 2006,
by and among TAS Holding, Inc., a Delaware corporation (the "Company"), and the
Stockholders specified on the signature pages to this Agreement.
W I T N E S S E T H:
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WHEREAS, each of the Stockholders is concurrently entering into a
Transaction Agreement with the Company, dated as of the date hereof (the
"Transaction Agreement");
WHEREAS, pursuant to the terms and subject to the conditions set forth
in each of the Transaction Agreement, the Stockholders will, among other things,
purchase shares of Common Stock (as hereinafter defined);
WHEREAS, it is a condition to the parties entering into the Transaction
Agreement that this Agreement be executed to restrict the transfer of the Shares
(as hereinafter defined) and to provide for certain other rights and obligations
as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
"AFFILIATE" shall mean, as to any Person, any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such Person. For the purposes of this definition, "control," when used with
respect to any Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. The term "controlling" and "controlled"
shall have meanings correlative to the foregoing.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the Company.
"CAPITALIZED LEASE" means, with respect to any Person, any lease of
real or personal property by such Person as lessee which is (i) required under
GAAP to be capitalized on the balance sheet of such Person or (ii) a transaction
of a type commonly known as a "synthetic lease" (i.e. a lease transaction that
is treated as an operating lease for accounting purposes but with respect to
which payments of rent are intended to be treated as payments of principal and
interest on a loan for Federal income tax purposes).
"CAPITALIZED LEASE OBLIGATIONS" means, with respect to any Person,
obligations of such Person and its Subsidiaries under Capitalized Leases, and,
for purposes hereof, the amount of any such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
"CAPITAL STOCK" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not
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voting) of corporate stock, and (ii) with respect to any Person that is not a
corporation, any and all partnership, membership or other equity interests of
such Person.
"CARRYING VALUE" shall mean, with respect to a Share, the price paid by
the selling Management Stockholder for any such Share, less the amount of
dividends paid to such Management Stockholder in respect of such Share.
"CAUSE" shall mean (i) in the case of a Stockholder with a written
employment agreement with the Company or any of its Subsidiaries in which
'Cause' is defined, as defined in such agreement and (ii) in all other cases, a
termination of such Stockholder's employment by the Company or any of its
Subsidiaries due to (A) the refusal or neglect of the Stockholder to perform his
employment-related duties, (B) the Stockholder's personal dishonesty,
incompetence, willful misconduct or breach of fiduciary duty, (C) the
Stockholder's conviction of or entering a plea of guilty or NOLO CONTENDERE to a
crime constituting a felony or his or her willful violation of any law, rule, or
regulation (other than a traffic violation or similar offense or violation
outside of the course of employment which in no way adversely affects the
Company or its reputation or the ability of the Stockholder to perform his
employment-related duties or to represent the Company), or (D) the breach by the
Stockholder of any written covenant or agreement with the Company or any of its
Subsidiaries not to disclose any information pertaining to the Company or such
subsidiary or not to compete or interfere with the Company or such subsidiary.
"COMMON STOCK" shall mean the common stock of the Company, $0.01 par
value per share.
"COMMON STOCK EQUIVALENTS" shall mean (i) any evidences of
Indebtedness, shares of stock or other securities directly or indirectly
convertible into or exchangeable for shares of any class of Common Stock, and
(ii) any right, option or warrant to subscribe for, purchase or otherwise
acquire, directly or indirectly, shares of any class of Common Stock; PROVIDED,
that unless otherwise specified herein, for the purposes of computing the number
of Shares either outstanding or held by a Stockholder, the Common Stock
Equivalents outstanding or held by such Stockholder shall be deemed to be
converted, exercised or exchanged for shares of Common Stock, whether or not
such conversion, exercise or exchange has actually been effected, but only to
the extent then convertible, exercisable or exchangeable and vested.
"COMPANY" shall have the meaning set forth in the preamble.
Notwithstanding anything in this Agreement to the contrary, the term "Company"
shall mean, without limitation, any successor corporation into which the Company
is merged.
"CONTINGENT OBLIGATION" means, with respect to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, (i) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of a primary obligor, (ii) the obligation to make
take-or-pay or similar payments, if required, regardless of nonperformance by
any other party or parties to an agreement or (iii) any obligation of such
Person, whether or not contingent, (A) to purchase any such primary obligation
or any property
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constituting direct or indirect security therefor, (B) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (3) to purchase
property, assets, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (4) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
PROVIDED, HOWEVER, that the term "Contingent Obligation" shall not include any
product or service warranties extended in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation with respect to which
such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the terms of
the instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability with respect thereto
(assuming such Person is required to perform thereunder), as determined by such
Person in good faith.
"DISABILITY" shall mean if, as a result of such Stockholder's
incapacity due to reasonably documented physical or mental illness, such
Stockholder shall have been unable for more than six months within any 12-month
period to perform his or her duties with the Company or such subsidiary on a
full-time basis.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, and regulations
thereunder, in each case, as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"ERISA AFFILIATE" means, with respect to any Person, any trade or
business (whether or not incorporated) which is a member of a group of which
such Person is a member and which would be deemed to be a "controlled group"
within the meaning of Sections 414(b), (c), (m) and (o) of the Internal Revenue
Code.
"FAIR MARKET VALUE" of the Shares shall mean, on any day, with respect
to Shares which are (a) listed on a United States securities exchange, the last
sales price of such stock on such day on the largest United States securities
exchange on which such stock shall have traded on such day, or if such day is
not a day on which a United States securities exchange is open for trading, on
the immediately preceding day on which such securities exchange was open, (b)
not listed on a United States securities exchange but is included in The NASDAQ
Stock Market System (including the NASDAQ National Market), the last sales price
on such system of such stock on such day, or if such day is not a trading day,
on the immediately preceding trading day, or (c) neither listed on a United
States securities exchange nor included in The NASDAQ Stock Market System, the
fair market value thereof (as of a date which is not more than 20 days prior to
the date as of which the determination is to be made) determined in good faith
jointly by the Company and the Transferring Stockholder (except that, (i) in the
case of an Involuntary Transfer (A) which is to an Affiliate of the Principal
Stockholder, such determination shall be made jointly by the Company, the
Involuntary Transferee and the Minority Stockholder or (B) which is not to an
Affiliate of the Principal Stockholder, such determination shall be made jointly
by the Company and the Involuntary Transferee and (ii) in the case of a transfer
pursuant to
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Section 3.7, such determination shall be made by the Principal Stockholder and
the Minority Stockholder)); PROVIDED, HOWEVER, (A) that if, solely with respect
to clause (i) above, such parties are unable to reach agreement within a
reasonable period of time, the Fair Market Value shall be determined in good
faith by an Independent Appraiser selected jointly by the Company and the
Transferring Stockholder (or Involuntary Transferee and the Minority
Stockholder, if applicable) or, if that selection cannot be made within 10 days,
by an Independent Appraiser selected by the American Arbitration Association in
accordance with its rules, which determination shall be conclusive and binding
on the parties and (B) that if, solely with respect to clause (ii) above, such
parties are unable to reach agreement within the 10 day time period prescribed
by Section 3.7, then, subject to the provisions of Section 3.7, the Principal
Stockholder and the Minority Stockholder shall (i) no later than 5 days after
the expiration of such 10 day period set forth above, engage an Independent Bank
regarding a Sale of the Company and (ii) confer for a period of no more than 30
days after the expiration of such 10 day period set forth above regarding plans
or proposals for a Sale of the Company, including without limitation the
solicitation of offers with respect to a Sale of the Company by third parties
who are not Affiliates or Permitted Transferees of the Minority Stockholder, the
Principal Stockholder or the Company, as applicable and the Fair Market Value
shall be deemed to be the highest bona fide cash price per share offered during
such 30 day period by such third parties. Fair Market Value, as determined
pursuant to this Agreement, shall be based upon all considerations that the
Independent Appraiser determines to be relevant, including the results of
operations of the Company and any previous internal or third party appraisals of
the fair market value of the Shares. All determinations of Fair Market Value
under this Agreement shall be made by determining the Fair Market Value of the
total equity of the Company and apportioning that value among the Shares subject
to the determination without taking into consideration any premium for control,
discount for minority interests, restrictions on transfer or the voting rights
of the Shares subject to the determination but, in the case of any Common Stock
Equivalent, taking into account any exercise price or purchase price thereof and
any limitations on its exercisability.
"FAMILY MEMBER" shall have the meaning assigned to such term in Section
3.1(b).
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States, applied on a consistent basis.
"GOOD REASON" shall mean (i) in the case of a Stockholder with a
written employment agreement with the Company or any of its Subsidiaries in
which 'Good Reason' is defined, as defined in such agreement and (ii) in all
other cases, if such Stockholder voluntarily terminates his or her employment
with the Company or any of its Subsidiaries as a result of a significant
reduction by the Company or such subsidiary of such Stockholder's current
salary, bonus or any agreed upon benefit provided under any employment agreement
between the Company and such Stockholder without his or her prior written
consent, other than any such reduction which is part of a general salary
reduction or other concessionary arrangement affecting all employees or
affecting the group of employees of which such Stockholder is a member (after
receipt by the Company of written notice and a 20-day cure period).
"HEDGING AGREEMENT" means any interest rate, foreign currency,
commodity or equity swap, collar, cap, floor or forward rate agreement, or other
agreement or arrangement designed to protect against fluctuations in interest
rates or currency, commodity or equity values
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(including, without limitation, any option with respect to any of the foregoing
and any combination of the foregoing agreements or arrangements), and any
confirmation executed in connection with any such agreement or arrangement.
"INDEBTEDNESS" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money; (ii) all obligations of
such Person for the deferred purchase price of property or services (other than
trade payables or other accounts payable incurred in the ordinary course of such
Person's business and not outstanding for more than 90 days after the date such
payable was created); (iii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments or upon which interest payments
are customarily made; (iv) all reimbursement, payment or other obligations and
liabilities of such Person created or arising under any conditional sales or
other title retention agreement with respect to property used and/or acquired by
such Person, even though the rights and remedies of the lessor, seller and/or
lender thereunder may be limited to repossession or sale of such property; (v)
all Capitalized Lease Obligations of such Person; (vi) all obligations and
liabilities, contingent or otherwise, of such Person, in respect of letters of
credit, acceptances and similar facilities; (vii) all obligations and
liabilities of such Person under Hedging Agreements; (viii) all Contingent
Obligations; (ix) liabilities incurred under Title IV of ERISA with respect to
any plan (other than a Multiemployer Plan) covered by Title IV of ERISA and
maintained for employees of such Person or any of its ERISA Affiliates; (x)
withdrawal liability incurred under ERISA by such Person or any of its ERISA
Affiliates with respect to any Multiemployer Plan; and (xi) all obligations
referred to in clauses (i) through (x) of this definition of another Person
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien upon property owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness. The Indebtedness of any Person shall include the
Indebtedness of any partnership of or joint venture in which such Person is a
general partner or a joint venturer.
"INDEPENDENT" means a Person (i) who does not accept any consulting,
advisory, or other compensatory fee from the Company, the Principal Stockholder,
the Minority Stockholder or any of their Affiliates (other than customary
renumeration paid to such Person as a director of the Company); and (ii) who is
not an Affiliate or affiliated person of the Company, the Principal Stockholder
or the Minority Stockholder.
"INDEPENDENT APPRAISER" means a third party appraiser which (i) does
not have a current material business or other relationship with the Company, any
Stockholders of the Company or any of their respective Affiliates and (ii) is a
nationally recognized investment banking or accounting firm or an Affiliate of
such a firm.
"INDEPENDENT BANK" means a nationally recognized investment banking an
Affiliate of such a firm which does not have a current material business or
other relationship with the Company, any Stockholders of the Company or any of
their respective Affiliates..
"INVENTORY" means, with respect to any Person, all goods and
merchandise of such Person, including, without limitation, all raw materials,
work-in-process, packaging, supplies, materials and finished goods of every
nature used or usable in connection with the shipping, storing, advertising or
sale of such goods and merchandise, whether now owned or hereafter
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acquired, and all such other property the sale or other disposition of which
would give rise to an account receivable or cash.
"INVOLUNTARY TRANSFER" shall mean any transfer, proceeding or action by
or in which a Stockholder shall be deprived or divested of any right, title or
interest in or to any of the Shares otherwise than by a voluntary decision on
the part of such Stockholder, including any seizure under levy of attachment or
execution, any transfer in connection with bankruptcy (whether pursuant to the
filing of a voluntary or an involuntary petition under the United States
Bankruptcy Code of 1978, or any modifications or revisions thereto) or other
court proceeding to a debtor in possession, trustee in bankruptcy or receiver or
other officer or agency, any transfer to a state or to a public officer or
agency pursuant to any statute pertaining to escheat or abandoned property and
any transfer pursuant to a divorce or separation agreement or a final decree of
a court in a divorce action from which there is no further right of appeal;
PROVIDED, HOWEVER, that the term "Involuntary Transfer" shall not include any
transfer upon the death of a Stockholder who is a natural person to his or her
executors, testamentary trustees, legatees, beneficiaries or legal
representatives, or upon the incapacity of a Stockholder who is a natural
person, to his or her conservators or guardians.
"IPO" shall mean the first firm commitment underwritten public offering
of Common Stock of the Company which is registered under the Securities Act.
"LIEN" means any mortgage, deed of trust, pledge, lien (statutory or
otherwise), security interest, charge or other encumbrance or security or
preferential arrangement of any nature, including, without limitation, any
conditional sale or title retention arrangement, any Capitalized Lease and any
assignment, deposit arrangement or financing lease intended as, or having the
effect of, security.
"MANAGEMENT STOCKHOLDERS" shall mean any Stockholder who is or becomes
a member of the Company's management or otherwise employed by the Company and
their Permitted Transferees.
"MERGER" means the merger of the Company with and into TIMCO Aviation
Services, Inc. ("Timco") pursuant to the Merger Agreement.
"MINORITY STOCKHOLDER" shall mean collectively, the parties listed on
Annex A hereto, as amended from time to time.
"OTHER STOCKHOLDERS" shall have the meaning assigned to such term in
Section 3.2(a).
"PERMITTED TRANSFEREE" shall have the meaning assigned to such term in
Section 3.1(b).
"PERSON" shall mean any individual, firm, partnership, corporation,
trust, joint venture, association, joint stock company, limited liability
company, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof, and shall
include any successor (by merger or otherwise) of such entity.
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"PRINCIPAL STOCKHOLDER" shall mean LJH, LTD.
"REGISTERED SALE" shall mean a sale under an effective registration
statement filed pursuant to the Securities Act.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement, dated as of the date hereof, and as amended from time to time, among
the Company and the Stockholders party thereto.
"RETIREMENT" shall mean the retirement of a Management Stockholder upon
or after reaching the age of 65.
"SALE OF THE COMPANY" shall mean the sale of the Company to a Person
(or group) that is not an Affiliate or Permitted Transferee of any Stockholder,
pursuant to which such Person (or group) shall acquire beneficial ownership of
50% or more of the Shares (whether by merger, consolidation or transfer of
Shares) or 50% or more of the assets and properties of the Company; provided;
that solely with respect to Section 3.7 hereof the term "Sale of the Company"
shall be deemed to refer to the acquisition of all the assets or properties of
the Company or 100% of the Shares, as applicable.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations promulgated thereunder, or any
successor statute.
"SHARES" shall mean any shares of Common Stock and any Common Stock
Equivalents held by any Stockholder as of the date of this Agreement (unless
specifically stated otherwise) and any and all shares of capital stock of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution for the Shares, by reason of any stock
dividend, split, reverse split, combination, recapitalization, reclassification,
merger, consolidation or otherwise and all such shares subsequently acquired for
value, as if held on the date hereof.
"STOCKHOLDERS" shall mean, collectively, the parties listed on the
signature pages to this Agreement and any transferee who has agreed to be bound
by the terms and conditions of this Agreement in accordance with Section 4.
"SUBSIDIARY" means, with respect to any Person at any date, any
corporation, limited or general partnership, limited liability company, trust,
estate, association, joint venture or other business entity (i) the accounts of
which would be consolidated with those of such Person in such Person's
consolidated financial statements if such financial statements were prepared in
accordance with GAAP or (ii) of which more than 50% of (A) the outstanding
Capital Stock having (in the absence of contingencies) ordinary voting power to
elect a majority of the board of directors or other managing body of such
Person, (B) in the case of a partnership or limited liability company, the
interest in the capital or profits of such partnership or limited liability
company or (C) in the case of a trust, estate, association, joint venture or
other entity, the beneficial interest in such trust, estate, association or
other entity business is, at the time of determination, owned or controlled
directly or indirectly through one or more intermediaries, by such Person.
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"TAG ALONG STOCKHOLDER" shall have the meaning assigned to such term in
Section 3.3(b).
"TRANSACTION AGREEMENT" shall have the meaning set forth in the
preamble.
"TRANSFER" shall have the meaning assigned to such term in Section
3.1(a).
"TRANSFER COSTS" shall have the meaning assigned to such term in
Section 3.5.
"TRANSFERRING STOCKHOLDER" shall have the meaning assigned to such term
in Section 3.2(a).
2. REPRESENTATIONS OF STOCKHOLDERS.
Each of the Stockholders with respect to themselves represents and
warrants as follows:
2.1 AUTHORIZATION. Such Stockholder has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder and,
if such Stockholder is an entity, this Agreement has been duly authorized,
executed and delivered by such Stockholder. This Agreement is valid, binding and
enforceable against such Stockholder in accordance with its terms, except that
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization and similar laws of general application relating to or affecting
the rights and remedies of creditors.
2.2 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. The execution and
delivery of this Agreement, and the performance of the obligations hereunder,
will not (a) conflict with (i) for any Stockholder that is an entity, any
provision of any governing instrument applicable to such Stockholder or (ii) any
permit, franchise, judgment, decree, statute, rule or regulation applicable to
such Stockholder or its business or property or (b) result in any material
breach of any terms or provisions of, or constitute a material default under,
any material contract, agreement or instrument to which such Stockholder is a
party or by which it is bound or to which any assets of such party are subject.
2.3 CONSENTS. No filing with, or consent, approval, authorization or
action of, any governmental authority or third party, is required to be made or
obtained by or with respect to such Stockholder in connection with the execution
and delivery of this Agreement by it, other than such filings, consents,
approvals, authorizations or actions, the failure of which to make or obtain,
individually or in the aggregate, would not materially affect its obligations
hereunder.
2.4 INVESTMENT. Each Stockholder acquiring Shares (i) is acquiring the
Shares solely for such Stockholder's own account for investment purposes, and
not with a view to the distribution thereof, and will not sell or otherwise
dispose of any Shares except in compliance with the Securities Act, the rules
and regulations of the Securities and Exchange Commission (the "SEC") thereunder
and the terms of this Stockholders Agreement, (ii) has received certain
information concerning the Company and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and the risks
inherent in holding the Shares, (iii) is able to bear the economic risk and lack
of liquidity inherent in holding the Shares,
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including the complete loss of such Stockholder's investment in the Shares, and
(iv) is an accredited investor, as defined in the rules promulgated under the
Securities Act and/or either alone or with such Stockholder's purchaser
representative(s) has such knowledge and experience in financial and business
matters that such Stockholder is capable of evaluating the merits and risks of
an investment in the Shares.
3. TRANSFER OF SHARES.
3.1 GENERAL RESTRICTION; PERMITTED TRANSFERS.
(a) GENERAL. No Stockholder shall, directly or indirectly, sell,
give, assign, hypothecate, pledge, encumber, grant a security interest in or
otherwise dispose of (whether by operation of law or otherwise) (each, a
"transfer") any Shares or any right, title or interest therein or thereto,
except (i) as expressly permitted herein, or (ii) pursuant to a Registered Sale.
(b) PERMITTED TRANSFERS. Any Stockholder may, subject to Section 4,
transfer Shares to (i) with respect to a Stockholder who is a natural person,
(A) a member of such Stockholder's immediate family, which shall mean his or her
spouse (except for a spouse with whom such Stockholder has entered into any
divorce or separation agreement or action) and lineal descendants (whether
natural or adopted) (each, a "Family Member"), (B) a trust, corporation, limited
liability company or partnership, all of the beneficial interests in which shall
be held by such Stockholder or one or more Family Members of such Stockholder,
(C) in the case of such Stockholder's incapacity, a guardian or conservator of
such Stockholder, or (D) in the case of such Stockholder's death, by will or by
the laws of interstate succession, such Stockholder's executors, administrators,
testamentary trustees, legatees or beneficiaries; PROVIDED, HOWEVER, that during
the period any such trust, corporation, limited liability company or partnership
provided for in subclause (B) above holds any right, title or interest in any
Shares, no Person other than such Stockholder or one or more Family Members of
such Stockholder may be or become beneficiaries, stockholders, members or
limited or general partners thereof; and (ii) with respect to a Stockholder that
is not a natural person, (A) an Affiliate of such Stockholder or (B) upon the
liquidation or dissolution of such Stockholder, any general or limited partner,
member or stockholder of such Stockholder (each Person referred to in the
preceding clauses (i) and (ii) is herein referred to as a "Permitted
Transferee"). Any transfer pursuant to this Section 3.1(b) may be effected
without complying with the provisions of Section 3.2 or 3.3. Upon the
consummation of, and as a condition to, any transfer pursuant to this Section
3.1(b), the transferee must execute an Instrument of Accession in the form of
Exhibit A hereto and thereby become a party to, and be bound by, the terms and
provisions of this Agreement. References in this Agreement to Shares held or
owned by any Stockholder shall be deemed to include Shares held or owned by any
such Permitted Transferee(s) and references to actions to be taken by a
Stockholder shall be taken jointly by such Stockholder and its Permitted
Transferee(s).
(c) PLEDGE OR GRANT OF SECURITY INTEREST BY STOCKHOLDER. Subject to
Section 4, a Stockholder may pledge all or a portion of its Shares or grant a
security interest therein to secure indebtedness of such Stockholder or any of
its Permitted Transferees owing to a bank, other financial institution or other
financing source; PROVIDED, HOWEVER, that (i) any foreclosure or transfer of
title pursuant to such pledge of (or grant of a security interest in) Shares
- 9 -
shall not be governed by this Section 3.1(c) but shall be deemed an Involuntary
Transfer, and (ii) the pledge agreements or other related financing agreements
of any Stockholder shall be subject to and acknowledge the rights of the Company
and the other Stockholders set forth herein.
3.2 Notice Prior to Sale
(a) INFORMATION NOTICE. Except for a transfer permitted by Section
3.1(b) and (c) and subject to compliance with the provisions of Sections 3.3 and
4, prior to any transfer (other than in connection with a tender offer or
exchange offer) of Shares by a Stockholder (a "Transferring Stockholder"), such
Transferring Stockholder shall not approach any bona-fide buyer prior to
informing the other Stockholders (the "Other Stockholders"), in writing (the
"Information Notice") of the Transferring Stockholders desire to seek a buyer
and the expiration of ten (10) days from the date of said Information Notice.
The Transferring Stockholder, through its representative, shall meet or confer
with the Other Stockholders regarding its plans and proposals at reasonable
times and places during the ten (10) days following the Information Notice (the
"Information Period").
(b) PERMITTED TRANSFERS. Upon the expiration of the Information
Period, subject to Section 3.3, the Transferring Stockholder may consummate a
sale of Shares by entering within 120 days from the expiration of the
Information Period into a definitive agreement with a third party. If any sale
to a third party pursuant to this clause (b) is not consummated within 120 days
of the date of execution of the applicable purchase agreement, the restrictions
provided for herein shall again become effective, and no transfer of Shares may
be made thereafter (other than in a transfer pursuant to Section 3.1) by the
Transferring Stockholder without again notifying the Other Stockholders in
accordance with this Section 3.2.
(c) RIGHT OF FIRST REFUSAL.
(i) Except for a transfer permitted by Section 3.1(b) and
(c), if the Minority Stockholder or its Permitted Transferee desires to
sell, dispose of, or otherwise transfer all or any of its Shares (the
"Option Stock") to any Person that is not an Affiliate or Permitted
Transferee of the Minority Stockholder and who has made an unsolicited
bona-fide offer to purchase such Option Stock (other than by means of a
tender offer or exchange offer registered with the SEC) (the "Proposed
Transferee"), then, before transferring any of the Option Stock to such
Proposed Transferee, (i) it shall have received a bona fide written
offer to purchase the Option Stock at a stated dollar price per share
for cash, and (ii) it shall give written notice (the "Option Notice")
to the Principal Stockholder . The Option Notice shall:
(A) certify that the Minority Stockholder has received a
bona fide written offer to purchase the Option Stock
and enclose a copy of such offer,
(B) identify the Proposed Transferee who has made such
bona fide offer,
(C) state the number of Shares the Proposed Transferee
has offered to purchase,
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(D) state the purchase price per share for the Shares to
be transferred and other material terms and
conditions of the Transferor's offer to purchase the
Option Stock, and
(E) state the date on which the Option Notice is being
sent to the Principal Stockholder (the "Notice
Date").
(ii) On or before the twentieth (20th) day after the Notice
Date, the Principal Stockholder may exercise an option to purchase all
but not less than all of the Option Stock for the same purchase price
and on the same terms and conditions as the Proposed Transferee's offer
as set forth in the Option Notice. The Principal Stockholder shall
exercise its option by giving written notice to the Minority
Stockholder on or before the expiration of the twentieth (20th) day
after the Notice Date (the "Exercise Notice"). The aggregate purchase
price specified in the Option Notice shall be paid solely in cash.
(iii) The closing for the purchase by the Principal Stockholder
of the Option Stock under Section 3.2(c) shall be held at 10:00 a.m. at
the principal office of the Company, on the date specified in the
Exercise Notice (the "Closing Date"), which date shall be not earlier
than 30 days nor later than 60 days after the date of the Exercise
Notice. The purchase price and all other terms for such purchase of the
Option Stock shall be as set forth in the Option Notice. At such
closing, the Minority Stockholder shall deliver certificates
representing the Option Stock, duly endorsed for transfer and
accompanied by all requisite stock transfer taxes, if any, against
payment of the purchase price therefore, and the Option Stock shall be
free and clear of any liens, charges, claims or encumbrances (other
than restrictions imposed pursuant to applicable Federal and state
securities laws and restrictions imposed by this Agreement) and the
Minority Stockholder shall so represent and warrant. The Minority
Stockholder shall further represent and warrant that it is the record
and beneficial owner of such Shares and make such additional
representations and warranties as shall be customary in transactions of
a similar nature.
(iv) If the Principal Stockholder does not elect to purchase
all of the Option Stock set forth in the Option Notice, the Minority
Stockholder may (subject to the terms of Section 4) transfer the Option
Stock to the Proposed Transferee named in the Option Notice for the
consideration no less than that stated in the Option Notice and
substantially upon the terms set forth in the Option Notice. The
transfer of the Option Stock to the Proposed Transferee must be
consummated within a period of 120 days after the date of the Notice
Date. Any transfer after the expiration of such 120-day period and any
transfer to a different transferee or for different form of
consideration or upon terms and conditions substantially different from
those set forth in the Option Notice shall be null and void.
(v) FAILURE TO EXERCISE OPTIONS. The failure of the Principal
Stockholder to give any written notice specified in this Section 3.2(c)
within the time period specified herein shall be deemed to be a waiver
of its rights under this Section 3.2(c).
3.3 TAG ALONG RIGHTS.
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(a) The Principal Stockholder may not and shall cause its
Affiliates not to, transfer any Shares to one or more third parties if such
transactions, together with all Shares previously transferred by the Principal
Stockholders to one or more third parties, would, if consummated, result in the
Principal Stockholder transferring more than 25% of the aggregate number of
Shares held by the Principal Stockholder (without giving effect to any previous
transfers pursuant to Section 3.1(b) or (c) or this Section 3.3), UNLESS each
Other Stockholder is offered a right to sell (the "Tag Along Right") in such
transfer with such Principal Stockholder. Any sale pursuant to this Section 3.3
shall be made in compliance with the provisions of Section 3.2.
(b) At least 20 days prior to any such transfer, such Principal
Stockholder will deliver a sale notice to the Other Stockholders specifying the
identity of the prospective transferee(s) and disclosing in reasonable detail
the number of Shares, the price, which shall be payable solely in cash at the
closing of the transaction or in installments over time, a good faith estimate
of the Transfer Costs for such transfer and other terms and conditions of the
proposed transfer, including, without limitation, the expected aggregate
holdings (in terms of dollars and percentage) by the Principal Stockholder of
the Shares immediately after consummation of such proposed transfer. The
Stockholders who elect to participate in the proposed transfer (the "Tag Along
Stockholders") shall deliver written notice of their election to participate to
the Principal Stockholder prior to the expiration of such 20-day period.
(c) Each Tag Along Stockholder will be entitled to sell in such
proposed transfer, at the same price and on the same terms as the Principal
Stockholder, a number of Shares equal to the product of (x) the quotient
determined by dividing the number of Shares then held by such Tag Along
Stockholder by the aggregate number of Shares held by the Principal Stockholder
and all Tag Along Stockholders multiplied by (y) the number of Shares to be sold
in such proposed transfer. The number of Shares proposed to be transferred by
the Principal Stockholder in the current transfer shall be reduced to the extent
necessary to provide for the sale of Shares by each Tag Along Stockholder
exercising its rights hereunder.
(d) PERMITTED TRANSFER. The transferring Principal Stockholder and
the Tag Along Stockholders may transfer the Shares at the price and on the terms
and conditions set forth in the sale notice for a period of 60 days from the
expiration of the 20-day period commencing on the date of delivery of the sale
notice to the Other Stockholders. Any Shares not transferred within such period
again shall be subject to the provisions of this Section 3.3 in connection with
any subsequent transfer.
(e) FAILURE TO EXERCISE OPTION. The failure of any Other
Stockholder to give written notice as specified in this Section 3.3 within the
time period specified herein shall be deemed to be a waiver of its rights under
this Section 3.3.
3.4 BRING-ALONG RIGHT
(a) BUYOUT NOTICE. In the event that one or more Stockholders who,
together, beneficially own 50% or more of the Shares (collectively, the "Selling
Stockholder") shall have received a bona fide offer from a Person that is not an
Affiliate or Permitted Transferee of the Selling Stockholder (or shall have
entered into a bona fide written agreement
- 12 -
with such Person) relating to a Sale of the Company, and the Selling Stockholder
desires to effect, or cause the Company to effect, such Sale of the Company, the
Selling Stockholder shall be entitled, after complying with the provisions of
Section 3.2(a), to give a notice (a "Buyout Notice") to the other Stockholders
(the "Bring-Along Stockholders"), not less than 60 days prior to the closing of
such Sale of the Company, stating that it proposes to effect (or cause the
Company to effect) such transaction, specifying the name and address of the
proposed parties to such transaction, the anticipated closing date, the
consideration payable in connection therewith and the terms and conditions
thereof, and attaching a copy of all writings between the Selling Stockholder
(or the Company) and the other parties to such Sale of the Company transaction
necessary to establish the terms of such transaction. A Stockholder shall not be
required to comply with Section 3.3 with respect to a Sale of the Company
pursuant to this Section 3.4
(b) REQUIRED SALE. Each Bring-Along Stockholder hereby appoints the
Selling Stockholder and any of its successors and assigns attorney-in-fact and
grants it an irrevocable proxy, coupled with an interest, to vote in respect of
any Sale of the Company subject to this Section 3.4. The irrevocable proxy will
be effective for all time and has no termination date. Each Bring-Along
Stockholder hereby represents that any other proxies heretofore given in respect
of its Shares are not irrevocable and are hereby revoked. Each Bring-Along
Stockholder hereby approves, ratifies and confirms all actions that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. The
irrevocable proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 212(e) of the Delaware General Corporate Law. Each
Bring-Along Stockholder agrees that, upon the giving of a Buyout Notice by the
Selling Stockholder, it shall be obligated to transfer all Shares held by it in
exchange for the per-share purchase price of the Sale of the Company transaction
(and hereby waives any dissenters' rights, appraisal rights or similar rights in
connection with any merger or consolidation and agrees to take all necessary
action to evidence such waiver and to cause the Company to consummate the
proposed transaction, including executing such documents as may be reasonably
required by the Selling Stockholder in connection with such sale); PROVIDED,
that the Bring-Along Stockholders shall only be obligated as provided in this
Section 3.4 if (i) the Selling Stockholder shall sell all of its Shares in, or
vote all of its Shares in favor of, such Sale of the Company transaction, (ii)
each Bring-Along Stockholder shall receive the same per Share consideration as
the Principal Stockholder in the Sale of the Company transaction (in the case of
any Common Stock Equivalent, as adjusted for any amounts payable upon exercise,
conversion or exchange), and (iii) the consideration received by each
Bring-Along Stockholder shall be in the form of cash, and (iv) no Bring-Along
Stockholder shall be required to make any representation, covenant or warranty
in connection with the Sale of the Company other than with respect to its
beneficial and record ownership of, and authority to sell, its Shares, free and
clear of any liens, claims, options, charges, encumbrances and rights (other
than those arising hereunder); PROVIDED, each such Bring-Along Stockholder shall
participate, pro rata, based upon the number of Shares being sold by the Selling
Stockholder and each Bring-Along Stockholder, (A) in any indemnity liabilities
to the purchaser in such transaction, and (B) in any escrow for the purpose of
satisfying any such indemnity liabilities, and (v) each Bring-Along Stockholder
is provided with a fairness opinion from an Independent Appraiser, stating that
the per Share consideration is fair from a financial point of view.
3.5 COSTS. All reasonable costs and expenses incurred by any
Stockholder in connection with a transfer hereunder (other than a transfer in
which (i) the Selling Stockholder
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shall have exercised its bring-along right under Section 3.4 or (ii) the
Principal Stockholder shall have exercised its rights under Section 3.7),
including all attorneys' fees, costs and disbursements and any finders' fees or
brokerage commissions, and all fees and expenses of any third party incurred,
pursuant to the terms hereof, in connection with a determination of Fair Market
Value (collectively, "Transfer Costs") shall be allocated pro rata among the
Stockholders transferring Shares, with each bearing that portion of such costs
and expenses equal to a fraction, the numerator of which shall be the amount of
the gross proceeds received in such transfer by such Stockholder and the
denominator of which shall be the total amount of the gross proceeds received by
all Stockholders in such transfer. All reasonable costs and expenses incurred by
the Stockholders in connection with a transfer in which the Selling Stockholder
shall have exercised its bring-along right under Section 3.4 or in which the
Principal Stockholder shall have exercised its right under Section 3.7,
including fees, costs and disbursements of one counsel chosen by the Selling
Stockholder or the Principal Stockholder, and any finders' fees or brokerage
commissions, shall be paid by the Selling Stockholder or the Principal
Stockholder, in each case, as applicable.
3.6 CLOSINGS. At any closing for the purchase of Shares, each
Stockholder selling Shares shall deliver certificates representing such Shares,
duly endorsed with a signature guarantee for transfer and accompanied by all
requisite transfer taxes, if any, and such Shares shall be free and clear of any
liens, claims, options, charges, encumbrances or rights (other than those
arising hereunder), and such selling Stockholder shall so represent and warrant,
and each shall further represent that it is the beneficial and record owner of
such Shares and has the authority to sell such Shares. At such closing, each
purchaser of Shares shall deliver at such closing payment for the cash portion
of the consideration for the Shares purchased by it by certified or official
bank check or wire transfer and shall pay the balance in accordance with the
agreed upon terms. At such closing, all of the parties shall execute such
additional documents as are otherwise customary and appropriate.
3.7 PURCHASE UPON EXERCISE OF REGISTRATION RIGHTS. If the Minority
Stockholder makes a Demand Registration (as defined in the Registration Rights
Agreement) at any time prior to an IPO, then within ten (10) days of a Request
(as defined in the Registration Rights Agreement), the Principal Stockholder may
elect by delivering a written notice ("Section 3.7 Exercise Notice") to the
Minority Stockholder to purchase all but not less than all of such number of
Shares as the Minority Stockholder proposes to be registered pursuant to the
Request (the "Section 3.7 Stock") for cash at Fair Market Value of the Shares
being purchased by the Principal Stockholder. If within 10 days of the Request
the Minority Stockholder and the Principal Stockholder do not agree on the Fair
Market Value of the Section 3.7 Stock, in accordance with the definition of Fair
Market Value, the Minority Stockholder and the Principal Stockholder shall meet
and confer regarding plans and proposals for a Sale of the Company and the Fair
Market Value shall be determined in accordance with such definition. Upon
determination of the Fair Market Value of the Shares subject to a Sale of the
Company (which shall be no later than the 40th day after the Request), the
Principal Stockholder shall (subject to its rights under Section 3.4), at the
option of the Minority Stockholder purchase the Section 3.7 Stock at the Fair
Market Value; provided, the Principal Stockholder may elect not to purchase the
Section 3.7 Stock, provided, further that the Request shall be reinstated, the
Minority Stockholder shall be entitled to its rights as an Initiating Holder (as
such term is defined in the Registration Rights Agreement) and the Company shall
comply with its obligations under the
- 14 -
Registration Rights Agreement. The closing of a transfer contemplated by this
Section 3.7 shall occur on or before 45 days from the date of the Request and in
accordance with Sections 3.5 and 3.6 above and the closing of a sale of the
Company contemplated by this Section 3.7, notwithstanding the provisions of
Section 3.4 shall occur on or before 60 days from the date of the Request and in
accordance with Sections 3.5 and 3.6 above . The failure of the Principal
Stockholder to give any written notice specified in this Section 3.7 within the
time period specified herein shall be deemed to be a waiver of its rights under
this Section 3.7.
4. ALL TRANSFERS IN COMPLIANCE WITH LAW AND SUBJECT TO THIS AGREEMENT;
SUBSTITUTION OF TRANSFEREE.
4.1 VIOLATION OF TRANSFER PROVISIONS. Any purported transfer of any
Shares by any Stockholder in violation of any provision of this Agreement shall
be void and shall not transfer any interest in or title to the purported
transferee. The Company shall not be required to (i) transfer on its books any
Shares in connection with any transfer in violation of any of the provisions set
forth in this Agreement, or (ii) treat as owner of such Shares or to accord the
right to vote as such owner or to pay dividends to any transferee of such Shares
in such transfer.
4.2 COMPLIANCE WITH LAW; SUBSTITUTION OF TRANSFEREE. In addition to the
other restrictions on transfer contained in this Agreement, the Shares have not
been registered under the Securities Act and, therefore, cannot be sold unless
subsequently registered under the Securities Act or pursuant to an exemption
from such registration. Notwithstanding any other provision of this Agreement,
no transfer may be made unless (i) each transferee of Shares (other than a
transferee in a Registered Sale or in a transfer pursuant to Section 3.1(c) but
including all transferees in transactions pursuant to Sections 3.1(b) and (c))
shall agree in writing to be bound by the terms and conditions of this Agreement
pursuant to an Instrument of Accession in the form of Exhibit A hereto and shall
cause his or her spouse, if any, to execute a Spousal Waiver in the form of
Exhibit B attached hereto, if such transferee is a natural person who resides in
a state with a community property system, and (ii) the transfer shall comply in
all respects with the applicable provisions of this Agreement, and with
applicable federal and state securities laws including the Securities Act, and
the Company may require such information from the transferor as is necessary to
permit the Company or its counsel to make a determination as to such compliance.
Upon becoming a party to this Agreement, subject to Section 6.2, a transferee
shall enjoy the same rights and be subject to the same obligations as its
predecessor hereunder.
5. ISSUANCES OF CAPITAL STOCK BY THE COMPANY; PREEMPTIVE RIGHT
5.1 PREEMPTIVE RIGHT. The Company shall give each Stockholder 30 days'
prior written notice of the proposed issuance or sale by the Company or any of
its Subsidiaries of any Common Stock, any Common Stock Equivalent, preferred
stock of the Company (or any other security exercisable for or convertible into
any shares of any series of preferred stock), any equity or debt securities of
any Subsidiary of the Company or any securities evidencing Indebtedness or other
securities or equity or debt interest of the Company or any of its Subsidiaries
(each, a "New Issuance") other than Common Stock or Common Stock Equivalents
issued or sold by the Company or any of its Subsidiaries (i) to the Company's
employees, independent contractors, strategic partners, consultants or directors
pursuant to arrangements approved unanimously by the Board of Directors, (ii) in
connection with acquisitions of other
- 15 -
companies or businesses, (iii) as a stock split or stock dividend, (iv) pursuant
to the exercise, conversion or exchange of any then outstanding Common Stock
Equivalent, (v) pursuant to a public offering registered under the Securities
Act, or (vi) in connection with a Sale of the Company. Such notice shall specify
the number and class of securities to be issued, the rights, terms and
privileges thereof, the price at which such securities shall be issued and the
portion such Stockholder shall be entitled to purchase pursuant to this Section
5.1. Each Stockholder shall be entitled to purchase that portion of a New
Issuance equal to a fraction, the numerator of which shall be the total number
of Shares owned by such Stockholder, giving effect, without duplication, to all
Common Stock Equivalents owned by such Stockholder, whether or not then
convertible, exercisable or exchangeable, but only to the extent then vested,
and the denominator of which shall be the total number of Shares then
outstanding, giving effect, without duplication, to all Common Stock Equivalents
outstanding, whether or not then convertible, exercisable or exchangeable, but
only to the extent then vested (including such Stockholder's Shares), at the
most favorable price and on the most favorable terms as are offered to any other
Persons, by giving written notice of such election to the Company within 15 days
after notice of such New Issuance has been given to such Stockholder; PROVIDED,
HOWEVER, that no Stockholder shall have any right to purchase securities
pursuant to this Section 5.1 if, prior to a sale of securities to such
Stockholder pursuant to this Section, such securities would be required to be
registered under the Securities Act. The failure of a Stockholder to give any
written notice specified in this Section 5.1 within the time period specified
herein shall be deemed to be a waiver of its rights under this Section 5.1.
5.2 CLOSING OF NEW ISSUANCE. Upon the expiration of the offering period
described above, the Company shall be entitled to sell such securities which the
Stockholders have not elected to purchase during the 120-day period following
such expiration at a price and on terms and conditions no more favorable to the
purchasers thereof than those offered to the Stockholders. Any such securities
offered or sold by the Company after such 120-day period must be reoffered to
the Stockholders pursuant to the terms of this Section. The closing of any
purchase by the Stockholders pursuant to Section 5.1 shall be held at the time
and place of the closing of, and on the same terms and conditions as, the New
Issuance, or at such other time and place as the parties to the transaction may
agree. At such closing, the participating Stockholders shall deliver, by
certified or official bank check or wire transfer, so much of the purchase price
for its portion of the New Issuance as is payable in cash and shall pay the
balance in accordance with the agreed upon terms of the transaction, and all
parties to the transaction shall execute such documents as are otherwise
customary and appropriate.
6. GOVERNANCE.
6.1 BOARD COMPOSITION; CORPORATE ACTION.
(a) BOARD COMPOSITION. Each Stockholder shall vote all of the
voting securities of the Company over which such Stockholder has voting control
and shall take all other necessary or desirable actions within its control
(whether in its capacity as a stockholder, director, member of a board committee
or officer of the Company or otherwise, and including attendance at meetings in
person or by proxy for purposes of obtaining a quorum and execution of written
consents in lieu of meetings), and the Company shall take all necessary or
desirable
- 16 -
actions within its control (including calling special board and stockholder
meetings), so that during the term of this Agreement (subject to Section 6.2):
(i) the authorized number of directors constituting the
entire Board of Directors shall be five;
(ii) the following persons shall be elected to the Board of
Directors at each election of directors:
(A) two individuals, in the aggregate, designated by the
Principal Stockholder and any other transferee of the
Principal Stockholder as provided in Section 6.2;
(B) one individual designated by the Minority Stockholder
and any other transferee of the Minority Stockholder
as provided in Section 6.2; and
(C) two individuals, who shall be (i) Independent and
(ii) designated jointly (but not individually) by the
directors designated under subclauses (A) and (B)
above (the "Independent Directors");
(iii) any member of the Board of Directors who shall be
designated for removal from the Board of Directors by the Person(s)
authorized to designate such member for election pursuant to clause
(ii) of this Section 6.1(a) shall be removed from the Board of
Directors;
(iv) each director of the Company who is appointed pursuant to
Section 6.1(a)(ii) shall be entitled to representation on each
committee, if any, of the Board of Directors at least proportionate to
his or her representation on the Board of Directors, unless and except
to the extent otherwise required by any applicable law or rule
promulgated by the SEC or stock exchange on which the securities of the
Company are listed;
(v) each of the Principal Stockholder and the Minority
Stockholder shall be entitled to appoint one director (each which
director shall be a then current member of the Board of Directors) to
each board of directors of each Subsidiary of the Company (or
equivalent governing body); provided that at the election of the
Minority Stockholder or the Principal Stockholder the composition of
each board of directors of any Subsidiary of the Company may be
established in accordance with Section 6.1(a)(ii); and
(vi) any vacancy on the Board of Directors created by reason
of the death, removal or resignation of a member shall be filled by an
individual designated by the Person(s) authorized to designate such
member for election pursuant to clause (ii) of this Section 6.1(a).
- 17 -
(b) CORPORATE ACTION. The Company shall not, directly or
indirectly, without the affirmative vote or written consent of the Minority
Stockholder:
(i) enter into, renew, extend or be a party to, or permit any
of its Subsidiaries to enter into, renew, extend or be a party to, any
transaction or series of related transactions (including, without
limitation, the purchase, sale, lease, transfer or exchange of property
or assets of any kind or the rendering of services of any kind) with,
or make any loan or advance to, or purchase, assume or guarantee any
Indebtedness to or from, any of its Affiliates or stockholders (or any
Affiliate of any stockholder) or any Person in which an Affiliate of
the Company or any of its Subsidiaries (other than a Subsidiary of the
Company) has an interest as a director, officer, employee or greater
than 5% stockholder or interest through a relationship with a Family
Member or any Person related by marriage to a Family Member, except (1)
necessary or desirable for the prudent operation of its business, for
fair consideration and on terms no less favorable to it or its
Subsidiaries than would be obtainable in a comparable arm's length
transaction with a Person that is not an Affiliate thereof, but in no
event for consideration in excess of $1,000,000 per annum, in one or a
related series of transaction (2) transactions with another
wholly-owned Subsidiary of the Company or the Company and (3)
transactions in existence as of the date hereof;
(ii) amend, alter, change, repeal or waive any provision of
its or any of its Subsidiaries Certificate of Incorporation or its
By-laws (or applicable governing documents) in any manner (whether by
merger, consolidation or otherwise), that would adversely affect the
rights, preferences or privileges of the Minority Stockholder; unless
such amendment, alteration, change, repeal or waiver applies equally in
such adverse manner and same proportion to the Principal Stockholder;
(iii) make any material change, through acquisitions,
dispositions of assets, or otherwise, in the nature of the business of
the Company and its Subsidiaries unless such action is approved by both
Independent Directors designated pursuant to Section 6.1(a)(ii)(C); or
(iv) enter into any contract, agreement, commitment or
understanding with respect to any of the foregoing.
6.2 TERMINATION OF SECTION 6.1. From and after the date that any
Stockholder entitled to designate an individual for Board membership and its
Permitted Transferees hold in the aggregate Shares representing less than 50% of
the Shares held in the aggregate by them on the date hereof (after taking into
account any recapitalization, stock split or similar corporate action), such
Stockholder and its Permitted Transferees shall no longer be entitled to
designate any directors for election or removal pursuant to Section 6.1(a);
PROVIDED, that the rights granted pursuant to Section 6.1(a) to designate an
individual for Board membership may, at the option of the transferring
Stockholder, be transferred, in whole but not in part, to any transferee of
Shares from the Principal Stockholder or the Minority Stockholder in one or a
series of related transactions pursuant to which such transferee acquires at
least 50% of the Shares held in the aggregate by either the Principal
Stockholder or the Minority Stockholder and their respective Permitted
Transferees on the date hereof(after taking into account any recapitalization,
stock
- 18 -
split or similar corporate action), as applicable; PROVIDED, FURTHER that any
director then serving who had been designated by such transferring Stockholder
shall offer to resign immediately. From and after the date that the Minority
Stockholder and its Permitted Transferees hold in the aggregate Shares
representing less than 50% of the Shares held in the aggregate by them on the
date hereof (after taking into account any recapitalization, stock split or
similar corporate action), the affirmative vote or written consent of the
Minority Stockholder shall no longer be required for purposes of Section 6.1(b);
PROVIDED, that the rights granted pursuant to Section 6.1(b) may be transferred
to any transferee of Shares from the Minority Stockholder in one or a series of
related transactions pursuant to which such transferee acquires at least 50% of
the Shares held in the aggregate by the Minority Stockholder and its Permitted
Transferees on the date hereof (after taking into account any recapitalization,
stock split or similar corporate action).
6.3 IRREVOCABLE PROXY. In order to effectuate Section 6.1 and in
addition to and not in lieu of Section 6.1, each Stockholder hereby grants to
the Secretary of the Company an irrevocable proxy solely for the purpose of
voting all of the Shares held by the grantor of the proxy for the election of
directors nominated only in accordance with Section 6.1.
6.4 LIABILITY INSURANCE. Within 90 days after the date hereof, the
Company shall take, or cause to be taken, all commercially reasonable action
necessary to cause the Company to maintain a directors' liability insurance
policy that is acceptable in all reasonable respects to the directors designated
by the Principal Stockholder and the Minority Stockholder.
7. STOCK CERTIFICATE LEGEND.
A copy of this Agreement shall be filed with the Secretary of the
Company and kept with the records of the Company. Each certificate representing
Shares now held or hereafter acquired by any Stockholder shall bear legends
substantially in the following form:
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE
STOCKHOLDERS AGREEMENT, DATED AS OF APRIL 10, 2006, AMONG THE COMPANY
AND THE STOCKHOLDERS NAMED THEREIN, A COPY OF WHICH MAY BE INSPECTED AT
THE COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE
TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND
UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF SUCH
STOCKHOLDERS AGREEMENT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS OR
- 19 -
PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF SUCH ACT AND SUCH LAWS.
8. MANAGEMENT STOCKHOLDERS.
8.1 CALL BY THE COMPANY TO THE MANAGEMENT STOCKHOLDERS.
(a) RIGHT TO PURCHASE. Subject to all paragraphs of this Section
8.1 and to Sections 8.2, 8.3 and 8.4, the Company shall have the right to
purchase from a Management Stockholder, and such Management Stockholder shall
have the obligation to sell to the Company, all, but not less than all, of such
Management Stockholder's Shares:
(i) at the Fair Market Value of the Shares to be purchased if
such Management Stockholder's employment with the Company or any of its
Subsidiaries is terminated as a result of (A) the termination by the
Company or any such subsidiary of such employment without Cause, (B)
the death or Disability of such Management Stockholder, (C) the
resignation of such Management Stockholder for Good Reason, or (D) the
Retirement of such Management Stockholder;
(ii) at the lesser of the Fair Market Value and the Carrying
Value of the Shares to be purchased if such Management Stockholder's
employment with the Company or any of its Subsidiaries is terminated by
the Company or any such subsidiary for Cause; or
(iii) at the Fair Market Value or the Carrying Value of the
Shares to be purchased, in the sole discretion of the Board of
Directors, if such Management Stockholder's employment with the Company
or any of its Subsidiaries is terminated for any reason other than as a
result of an event described in clauses (i) or (ii) of this Section
8.1(a).
(b) NOTICE. If the Company desires to purchase Shares from a
Management Stockholder pursuant to Section 8.1(a), it shall notify such
Management Stockholder not more than 60 days after the occurrence of the event
giving rise to the Company's right to acquire such Management Stockholder's
Shares.
8.2 PROHIBITED PURCHASES. Notwithstanding anything to the contrary
herein, the Company shall not be permitted or obligated to purchase any Shares
from a Management Stockholder hereunder to the extent (i) the Company is
prohibited from purchasing such Shares by applicable law or by any debt
instruments or agreements, including any amendment, renewal, extension,
substitution, refinancing, replacement or other modification thereof (the
"Financing Documents") entered into by the Company or any of its direct or
indirect Subsidiaries, (ii) a default has occurred under any Financing Document
and is continuing, (iii) the purchase of such Shares would, or in the opinion of
the Board of Directors might, result in the occurrence of an event of default
under any Financing Document or create a condition which would or might, with
notice or lapse of time or both, result in such an event of default, or (iv) the
purchase of such Shares would, in the reasonable opinion of the Board of
Directors, be imprudent in view of the financial condition (present or
projected) of the Company or any of its Subsidiaries or the
- 20 -
anticipated impact of the purchase of such Shares on the Company's or any of its
Subsidiaries' ability to meet their respective obligations under any Financing
Document. If Shares which the Company has the right or obligation to purchase on
any date exceed the total amount permitted to be purchased on such date pursuant
to the preceding sentence (the "Maximum Amount"), the Company shall purchase on
such date only that number of Shares up to the Maximum Amount (if any) (and
shall not be required to purchase more than the Maximum Amount) in such amounts
as the Board of Directors shall in good faith determine, applying the following
order of priority:
(A) First, the Shares of all Management Stockholders
whose Shares are being purchased by the Company by reason of
termination of employment due to death or Disability and, to the extent
that the number of Shares that the Company is obligated to purchase
from such Management Stockholders (but for this Section 8.2) exceeds
the Maximum Amount, such Shares PRO RATA among such Management
Stockholders on the basis of the number of Shares held by each of such
Management Stockholders that the Company is obligated or has the right
to purchase, and
(B) Second, to the extent that the Maximum Amount is
in excess of the amount the Company purchases pursuant to clause (A)
above, the Shares of all Management Stockholders whose Shares are being
purchased by the Company by reason of termination of employment without
Cause or due to Retirement or resignation for Good Reason up to the
Maximum Amount and, to the extent that the number of Shares that the
Company is obligated to purchase from such Management Stockholders (but
for this Section 8.2) exceeds the Maximum Amount, such Shares PRO RATA
among such Management Stockholders on the basis of the number of Shares
held by each of such Management Stockholders that the Company is
obligated or has the right to purchase, and
(C) Third, to the extent the Maximum Amount is in
excess of the amounts the Company purchases pursuant to clauses (A) and
(B) above, the Shares of all other Management Stockholders whose Shares
are being purchased by the Company up to the Maximum Amount and, to the
extent that the number of Shares that the Company is obligated to
purchase from such Management Stockholders (but for this Section 8.2)
exceeds the Maximum Amount, the Shares of such Management Stockholders
in such order of priority and in such amounts as the Board of Directors
in its sole discretion shall in good faith determine to be appropriate
under the circumstances.
Notwithstanding anything to the contrary contained in this Agreement, if the
Company is unable to make any payment when due to any Management Stockholder
under this Agreement by reason of this Section 8.2, the Company shall make such
payment at the earliest practicable date permitted under this Section 8.2.
8.3 CLOSING; PAYMENT. Subject to Section 8.2, the closing of the
purchase of Shares by the Company from a Management Stockholder pursuant to
Section 8.1 shall be held at the principal offices of the Company during the
30-day period following the date of the determination of Fair Market Value or
Carrying Value, as the case may be.
- 21 -
8.4 MANAGEMENT SALES NOT SUBJECT TO SECTION 3.2 PROCEDURES; TRANSFERS
BY MANAGEMENT STOCKHOLDERS TO PERMITTED TRANSFEREES. Any sale pursuant to
Section 8.1 may be made without complying with the provisions of Section 3.2.
Any Shares transferred pursuant to Section 3.1(b) to a Permitted Transferee
shall continue to be subject to the provisions of this Section 8 as though the
transferring Management Stockholder were the holder of such Shares.
9. MISCELLANEOUS.
9.1 ADDITIONAL PARTIES. If the Company issues Common Stock or Common
Stock Equivalents to any Person (other than pursuant to a Registered Sale), such
Person shall execute an Instrument of Accession in the form of Exhibit A hereto
and become a party hereto and, if such Person is a resident of a state with a
community property system, cause his or her spouse to execute a Spousal Waiver
in the form of Exhibit B attached hereto, and deliver such Instrument and
Spousal Waiver, if applicable, to the Company. Upon such execution and delivery,
such Person shall be deemed a 'Stockholder' for purposes of this Agreement.
9.2 NOTICES. Any notice, payment, demand or communication
(collectively, a "NOTICE") required or permitted to be given by this Agreement
or applicable law shall be in writing and sent by first class mail, overnight
courier, hand delivery or telephone conversation or e-mail; except, unless
waived by the recipient, if such notice is made by telephone conversation or
e-mail, such telephone conversation or e-mail shall be followed within 48 hours
thereof by written notice sent by first class mail, overnight courier or hand
delivery. Charges for any notice hereunder shall be prepaid and addressed as
follows, or to such other address as such Person may from time to time specify
by notice to the Stockholders or the Company, as the case may be:
(a) if to the Company, to the Company at 000 Xxxx Xxxx, Xxxxxxx,
Xxxxx, 00000 Attention Xxxx Xxxxxxxx; and
(b) if to a Stockholder, to the address set forth in SCHEDULE 1
hereto.
Unless otherwise indicated herein, any notice shall be deemed to be
delivered, given and received for all purposes as of the date delivered, or (x)
if sent by first class mail, five business days after the date on which the same
was deposited in a receptacle, regularly maintained by the United States Postal
Service for the deposit of mail, or (y) if sent by overnight delivery with a
nationally recognized overnight delivery service upon receipt, whichever occurs
first.
9.3 NO THIRD-PARTY BENEFICIARIES. This Agreement is made solely and
specifically among and for the benefit of the Stockholders and their respective
permitted successors and assigns, and no other Person, unless express provision
is made herein to the contrary, shall have any rights, interests or claims
hereunder or be entitled to any benefits under or on account of this Agreement
as a third-party beneficiary or otherwise.
9.4 REFERENCES TO THIS AGREEMENT; HEADINGS; SCOPE. Unless otherwise
indicated, "Articles," "Sections," "Subsections" and "Clauses" mean and refer to
designated Articles, Sections, Subsections and Clauses of this Agreement. Words
such as "herein," "hereby," "hereinafter," "hereof," "hereto" and "hereunder"
refer to this Agreement as a whole, unless the context indicates otherwise. All
headings in this Agreement are for convenience of
- 23 -
reference only and are not intended to define or limit the scope or intent of
this Agreement. This Agreement and the Registration Rights constitutes the
entire understanding of the Stockholders with respect to the subject matter
hereof and supersedes all prior understandings and agreements in regard hereto.
All exhibits, schedules, instruments and other documents referred to herein, and
as the same may be amended from time to time, are by this reference made a part
hereof as though fully set forth herein.
9.5 VALIDITY OF AGREEMENT; SEVERABILITY. Every provision of this
Agreement is intended to be severable. If any provision hereof is illegal,
invalid or unenforceable for any reason whatsoever, such provision will be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision were not a part of this Agreement; and the
remaining provisions of this Agreement will remain in full force and effect and
will not be affected by the invalid or unenforceable provision or by its
severance from this Agreement. Further, in lieu of such illegal, invalid, or
unenforceable provision, there will be automatically included, as part of this
Agreement, a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
In the event the laws of the State of Delaware or other controlling law is
subsequently amended or interpreted in such a way to make any provision of this
Agreement that was formerly invalid valid, such provision shall be considered to
be valid from the date provided in such interpretation or amendment or in the
event the interpretation or amendment does not otherwise provide, from the
effective date of such interpretation or amendment.
9.6 FURTHER ACTION. Each Stockholder, upon the request of the Board of
Directors or any other Stockholder, agrees to perform all further acts and
execute, acknowledge, or deliver any instruments or documents and to perform
such additional acts as may be reasonably necessary, appropriate or desirable to
carry out the provisions of this Agreement.
9.7 GOVERNING LAW. The laws of the State of Delaware, without reference
to conflict of laws principles, shall govern the validity, construction and
interpretation of this Agreement.
9.8 COUNTERPART EXECUTION. This Agreement may be executed in any number
of counterparts with the same effect as if the parties hereto had signed the
same document.
9.9 NO IMPLIED WAIVER. The Stockholders and the Company shall have the
right at all times to enforce the provisions of this Agreement in strict
accordance with the terms hereof, and no waiver of any provision of this
Agreement shall constitute a waiver of any other provision, nor shall any waiver
constitute a continuing waiver unless otherwise provided in writing.
9.10 JURISDICTION. Each party to this Agreement hereby irrevocably
agrees that any legal action or proceeding arising out of or relating to this
Agreement or any agreements or transactions contemplated hereby may be brought
exclusively in the courts of the State of Delaware and hereby expressly submits
to the personal jurisdiction and venue of such courts for the purposes thereof
and expressly waives any claim of improper venue and any claim that such courts
are an inconvenient forum. Each party hereby irrevocably consents to the service
of process of any of the aforementioned courts in any such suit, action or
proceeding by the mailing
- 23 -
of copies thereof by registered or certified mail, postage prepaid, to the
address provided to the Company in accordance with Section 9.2, such service to
become effective 10 days after such mailing.
9.11 AMENDMENTS. This Agreement may be amended, superseded, canceled,
renewed or extended, and the terms hereof may be waived, only by a written
instrument signed by the Principal Stockholder, the Minority Stockholder and the
Company or, in the case of a waiver, by the party waiving compliance.
9.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns.
9.13 ENTIRE AGREEMENT. This Agreement, the Registration Rights
Agreement and the Transaction Agreement (collectively, the "Other Agreements")
are intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement shall be deemed incorporated by reference into the
Company's Certificate of Incorporation and Bylaws and such Certificate of
Incorporation and Bylaws shall be construed and interpreted in a manner
consistent with this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings relating to such subject
matter, other than those set forth or referred to herein or in the Other
Agreements. This Agreement and the Other Agreements supersede all prior
agreements and understandings between the Company and the other parties to this
Agreement with respect to such subject matter.
9.14 ESCROW. If the Merger is not consummated in accordance with the
terms of that certain Agreement and Plan of Merger (the "Merger Agreement") by
and between the Company and Timco as contemplated by the Transaction Agreement
or if the Merger Agreement is terminated, the Company and the Principal
Stockholder shall take all such necessary and required action to cause the
Escrow Agent (as defined in that certain Escrow Agreement by and between Timco
and the Company as contemplated by the Transaction Agreement (the "Escrow
Agreement") to release and deliver to the Principal Stockholder 80.52% of the
Escrow (as defined in the Esc row Agreement) and to the Minority Stockholder
19.48% of the Escrow, in accordance with such Escrow Agreement, including
issuing joint instructions to release such funds as contemplated therewith.
10. TERMINATION.
10.1 TERMINATION AS TO STOCKHOLDER. This Agreement shall terminate as
to any Stockholder at such time as the Stockholder shall beneficially own no
Shares; PROVIDED, HOWEVER, that the provisions of this Agreement shall continue
in effect for the purpose of enforcing all obligations and undertakings having
theretofore become operative; and PROVIDED FURTHER, that a transfer of Shares
not explicitly permitted under this Agreement shall not relieve a Stockholder of
any of its obligations hereunder.
- 24 -
10.2 TERMINATION OF AGREEMENT. This Agreement shall continue in effect
until termination of this Agreement by written agreement of the Principal
Stockholder and the Minority Stockholder.
- 25 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
STOCKHOLDERS
LJH, LTD.
By:
----------------------------------------
Name: Xxxx Xxxxxx
Title:
OWL CREEK I L.P.
By: Owl creek Advisors, LLC
its General Partner
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
OWL CREEK II L.P.
By: Owl creek Advisors, LLC
its General Partner
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
OWL CREEK OVERSEAS FUND LTD.
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
OWL CREEK OVERSEAS FUND II, LTD.
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
THE COMPANY
TAS HOLDING, INC.
By:
-----------------------------------------
Name:
Title:
- 26 -
ANNEX A
Owl Creek I, L.P.
Owl Creek II, L.P.
Owl Creek Overseas Fund, Ltd.
Owl Creek Overseas Fund II, Ltd.
SA-1
EXHIBIT A
INSTRUMENT OF ACCESSION
The undersigned, _______________, as a condition precedent to becoming
the owner or holder of record of ___ ( ) shares of [description of securities],
of TAS Holding, Inc., a Delaware corporation ("Company"), hereby agrees to
become a stockholder, party to and bound by that certain Stockholders Agreement,
dated as of __________, 2006, by and among the Company and certain stockholders
of the Company. This Instrument of Accession shall take effect and shall become
an integral part of said Stockholders Agreement immediately upon execution and
delivery to the Company of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed
by or on behalf of the undersigned as of the date below written.
[For Entities]
----------------------------------------
By:
-------------------------------------
Name:
Title:
[For Individuals]
----------------------------------------
Name:
Address:
--------------------------------
--------------------------------
Date:
--------------------------------
Accepted:
TAS HOLDING, INC.
By:
--------------------------
Date:
------------------------
EXHIBIT B
ONLY INCLUDE THIS EXHIBIT B AS AN ATTACHMENT TO YOUR AGREEMENT IF YOU INCLUDED
THE REFERENCE TO A SPOUSAL WAIVER IN SECTION 3 THEREOF.
SPOUSAL WAIVER
________________ [Insert Name of Spouse] hereby waives and releases any
and all equitable or legal claims and rights, actual, inchoate or contingent,
which __________ [insert 'he' or 'she'] may acquire with respect to the
disposition, voting or control of the Shares subject to the Stockholders
Agreement, dated as of _____________, as the same may be amended from time to
time, except for rights in respect of the proceeds of any disposition of such
Shares.
--------------------------------
[Signature of Spouse]
SCHEDULE 1
Principal Stockholder--377 Xxxx Xxxx, Xxxxxxx, XX 00000 Attention: Xxxx Xxxxxx
with a copy to with a copy to Xxxxxxxxx & Xxxxxxxx, LLP, 000 X. Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000 Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.,
Minority Stockholder-- 000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx--CFO
with a copy to Xxxxxxx Xxxx & Xxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
