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EXHIBIT 10.9
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement"),
dated as of March 16, 1998, is by and among WYLE LABORATORIES, INC., a Delaware
corporation (the "Company"), XXXX INTERNATIONAL CORP. ("Xxxx"), WESINVEST
PARTNERS, L.P. ("Wesinvest") and certain senior managers of the Company (each
such senior manager, a "Management Stockholder," and collectively, the
"Management Stockholders"). Each of the parties hereto (other than the Company)
and any other person who shall hereafter become a party to or agree to be bound
by the terms of this Agreement is sometimes hereinafter referred to as a
"Stockholder" and all of such parties are sometimes hereinafter referred to as
the "Stockholders."
RECITALS
WHEREAS, this Agreement amends and restates the Stockholders
Agreement dated December 23, 1994 among Wesinvest and the Management
Stockholders, as amended on August 5, 1996, April 1997, September 24, 1997 and
November 7, 1997, to, among other things, add Xxxx as a party, and to reflect
additional terms and conditions as set forth herein.
WHEREAS, the parties hereto deem it in their best interests and in
the best interest of the Company to provide for the consistent and uniform
management of the Company, to regulate certain of their rights in connection
with their interests in the Company and to restrict the sale, assignment,
transfer, encumbrance or other disposition of the Company Stock held by the
Stockholders, and desire to enter into this Agreement in order to effectuate
those purposes and to otherwise establish certain rights among themselves, all
as hereinafter provided.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS;
REPRESENTATIONS AND WARRANTIES
1.1 Terms. As used herein, the terms below shall have the following
meanings:
"Affiliate" shall mean with respect to a Person, any other Person
that directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. For the purposes of
this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the
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management or policies of such Person, whether through the ownership of voting
securities or by agreement or otherwise.
"Beneficial Owner" shall mean any Person who directly or indirectly
through any contract, arrangement, understanding, relationship, or otherwise has
or shares voting power, which includes the power to vote, or to direct the
voting of, such security; and/or investment power which includes the power to
dispose, or to direct the disposition of, such security.
"Board of Directors" shall mean the Board of Directors of the
Company.
"Common Stock" shall mean, at any time, the then outstanding common
stock par value $.01, of the Company, including Special Common Stock.
"Company Stock" shall mean, at any time, the then outstanding Common
Stock and Preferred Stock of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Permitted Transferee" shall mean (i) with respect to each Management
Stockholder, any immediate family member, provided that any such family member
shall be deemed a "Permitted Transferee" only if the Transfer (as hereinafter
defined) in question is effected solely for estate planning purposes or occurs
by operation of law, including community property and family laws, and (ii) with
respect to Xxxx and Wesinvest, any Affiliate.
"Person" shall mean an individual, partnership, association, joint
venture, corporation, trust or unincorporated organization, a government or any
department, agency or political subdivision thereof or other entity.
"Preferred Stock" shall mean, at any time, the then outstanding (i)
Series A-1 Preferred Stock, (ii) Series B Senior Preferred Stock, (iii) Series C
Preferred Stock, and (iv) Series D Preferred Stock of the Company.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities (as
defined in Section 5.1(a)) covered by such Registration Statement and by all
other amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Public Event" shall mean a Qualifying IPO or a Public Merger.
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"Public Merger" shall mean a merger or consolidation of the Company
with and into any other corporation or corporations in which the Common Stock is
canceled and exchanged in whole or in part for securities belonging to a class
of securities registered under the Exchange Act.
"Qualifying IPO" shall mean the first offering for sale in a firm
commitment underwriting pursuant to a prospectus contained in an effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), which registration statement may register shares offered for
sale by the Corporation or stockholders exercising registration rights or both,
and which results in gross offering proceeds (without deduction for underwriting
discount or selling expenses) of at least Twenty-Five Million Dollars
($25,000,000.00).
"Register," "Registered" and "Registration" refer to a registration
effected by preparing and filing with the Commission a Registration Statement in
compliance with the Securities Act and this Agreement, and the declaration or
ordering of the effectiveness of such Registration Statement.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Registrable Securities (as defined in Section
5.1(a)) pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits to and all material incorporated by
reference in such Registration Statement.
"Rule 144" shall mean Rule 144 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
successor to such Rule that may be promulgated by the Commission.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
"Shelf Registration" shall have the meaning ascribed to such term in
Section 5.2(f) hereof.
"Subsidiary" shall mean any corporation, partnership, joint venture
or other entity of which any Stockholder owns, directly or indirectly, a
majority of the capital stock or is a general partner.
"Underwritten registration" or "underwritten offering" shall mean a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to a firm underwriting commitment.
1.2 Representations and Warranties. As of the date hereof, the
Company represents and warrants that, except as set forth on Exhibit A hereto,
there are no shares of outstanding capital stock of the Company and no rights,
options or warrants (whether or not now exercisable) to purchase or
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acquire capital stock of the Company. Each party hereto, other than the Company,
as to itself only, represents and warrants that:
(a) as of the date hereof, such party will beneficially
own the number of shares of Company Stock as set forth on Exhibit A hereto, and,
except as provided by the respective certificates of designations of the shares
of Preferred Stock, it has no option or right to acquire any additional shares
of Company Stock pursuant to any agreement or understanding;
(b) such party has full power and authority to execute and
deliver this Agreement and the execution and delivery by it of this Agreement
has been duly authorized by all necessary action; and
(c) this Agreement has been duly and validly executed and
delivered by such party and constitutes the binding obligation of such party,
enforceable against such party in accordance with its terms.
ARTICLE II
BOARD OF DIRECTORS; VOTING OF CAPITAL STOCK;
CERTAIN OTHER MATTERS
2.1 Board of Directors. From the date hereof and through the
termination of this Agreement in accordance with its terms, the parties hereto
shall take all action within their respective power, including the voting of
Company Stock, required to cause the Board of Directors of the Company to
consist of seven directors, who shall be designated as follows:
(a) Designees of the Management Stockholders. For so long
as the Management Stockholders collectively are the Beneficial Owners of 10% or
more of the Company Stock, the Management Stockholders (as a group acting
collectively as described in Section 2.9 hereof) shall designate and elect, in
the aggregate, two directors of the Company (or if the total number of directors
of the Company shall be different than seven, two-sevenths of such directors,
rounded up to the nearest director).
(b) Designees of Xxxx. For so long as Xxxx is the
Beneficial Owner of 10% or more of the Company Stock, Xxxx shall designate and
elect, in the aggregate, two directors of the Company (or if the total number of
directors of the Company shall be different than seven, two-sevenths of such
directors, rounded up to the nearest director).
(c) Designees of Wesinvest. For so long as Wesinvest is
the Beneficial Owner of 10% or more of the Company Stock, Wesinvest shall
designate and elect, in the aggregate, two directors of the Company (or if the
total number of directors of the Company shall be different than seven,
two-sevenths of such directors, rounded up to the nearest director).
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(d) Chief Executive Officer. The person appointed from
time to time by the Board of Directors of the Company to serve as Chief
Executive Officer of the Company shall be designated and elected a director for
so long as such person continues to serve as Chief Executive Officer.
2.2 Removal. If a director designated and elected pursuant
to Section 2.1 hereof:
(a) has been designated by the Management Stockholders
and the Management Stockholders request that such director be removed (with or
without cause) by written notice thereof to Xxxx and Wesinvest; or
(b) has been designated by Xxxx and Xxxx requests that such
director be removed (with or without cause) by written notice thereof to the
Management Stockholders and Wesinvest;
(c) has been designated by Wesinvest and Wesinvest
requests that such director be removed (with or without cause) by written
notice thereof to the Management Stockholders and Xxxx; or
(d) has been designated and elected in his or her capacity
as Chief Executive Officer and the majority of the Board of Directors requests
that such director be removed (with or without cause) by written notice to the
Management Stockholders, Xxxx and Wesinvest;
then such director shall be removed, with or without cause, upon the affirmative
vote of holders of a majority of the outstanding shares of Company Stock, and
each Stockholder hereby agrees to vote all shares of Company Stock owned or held
of record by such Stockholder to effect such removal upon such request.
2.3 Vacancies. In the event that a vacancy is created on the Board of
Directors at any time by the death, disability, retirement, resignation, removal
(with or without cause) or otherwise, or if for any other reason there shall
exist or occur any vacancy on the Board of Directors, each Stockholder hereby
agrees to cause the director(s) designated by such Stockholder to vote for that
individual designated to fill such vacancy and serve as a director by whichever
of the Stockholders that had designated (pursuant to Section 2.1 hereof) the
director whose death, disability, retirement, resignation or removal (with or
without cause) resulted in such vacancy on the Board of Directors (in the manner
set forth in Section 2.1); provided, however, that such other individual so
designated may not previously have been a director of the Company who was
removed for cause from its Board of Directors.
2.4 Actions of the Board of Directors.
(a) The By-Laws of the Company shall provide that the
presence of a majority of the directors (that includes at least one director
designated by each of Xxxx, Wesinvest and the
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Management Stockholders) shall be necessary to constitute a quorum at any
meeting of the Board of Directors.
(b) The By-Laws of the Company shall also provide that any
action of the Board of Directors requires the vote of a majority of the
directors present at a meeting with respect to which a quorum is in attendance;
provided, however, that an affirmative vote of six of the directors (or, if
there shall be a number of directors other than seven, six-sevenths of such
number, rounded up to the nearest director) at such a meeting shall be required
to approve the following:
(i) the dissolution of the Company;
(ii) the creation of another class or series of
equity securities of the Company with rights superior or inferior or
pari passu, to those of the Preferred Stock or Special Common Stock
or, except for the issuance of options to purchase up to 984,370
shares of the Common Stock to officers and/or employees of the
Company and Xxxx, as provided in Section 2.12 hereof, the issuance of
any equity securities of the Company, whether Preferred Stock or
Common Stock or rights to purchase equity securities of the Company
(including any issuance in connection with an acquisition described
in Section 2.4(b)(iii));
(iii) the acquisition of any business enterprise
or partial interest therein (whether or not acquired in a direct
acquisition or merger transaction and whether or not in the form of
stock, assets or an interest in a joint venture, partnership or
limited liability company) or any assets (or group of related
assets), outside of the ordinary course of the Company's business,
but only if the net value of the consideration paid by the Company
(as reasonably determined by the Board of Directors) in connection
with such acquisition, and any related series of acquisitions,
exceeds 15% of the Company's annual net revenues for the then most
recent trailing 12-month period, as reasonably determined by the
Company's Chief Financial Officer in conformity with the Company's
accounting policies and generally accepted accounting principles
consistently applied.
(c) The By-Laws of the Company shall further provide that
the Board of Directors may only take actions with respect to matters described
as proposed subjects for action in the written notice of meeting circulated as
provided in the By-Laws; provided, however, that the By-Laws shall also provide
that this limitation can be waived by the unanimous vote of the directors in
attendance at a meeting of the Board of Directors with respect to which (i) a
quorum and (ii) at least one designee of each of the Management Stockholders,
Xxxx and Wesinvest is in attendance.
(d) The By-Laws of the Company shall further provide that
any transaction between the Company and any of its officers or directors or any
party hereto holding at least 10% or more of the Company Stock, must be
approved by two-thirds of all disinterested directors.
2.5 Compensation of Directors. The Board of Directors shall,
from time to time,
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establish policies governing the compensation of directors and the reimbursement
of such directors for their reasonable out-of-pocket expenses; provided,
however, (i) that prior to the Qualifying IPO, no designee of Xxxx or Wesinvest
shall receive compensation for their services as directors, and (ii) that the
Company shall reimburse the directors for the reasonable travel expenses they
incur in connection with their attendance at meetings and other functions of the
Board of Directors.
2.6 Financial Information for the Board of Directors. Annual budgets
applicable to the Company shall be provided to the Board of Directors prior to
the beginning of each fiscal year in a form acceptable to the Board of
Directors. Monthly financial information shall be provided to the Board of
Directors within 30 days of the end of each month. Annual financial statements
for each fiscal year will be audited by a nationally recognized accounting firm
selected by the Board of Directors and shall be provided to the Board of
Directors within 90 days following the end of each such fiscal year.
2.7 Covenant to Vote.
(a) Each Stockholder hereby agrees to take all actions
necessary to call, or to cause the Company and the appropriate officers and
directors of the Company to call, a special or annual meeting of stockholders of
the Company and to vote all shares of voting stock of the Company owned or held
of record by such Stockholder at any such annual or special meeting in favor of,
or take all action by written consent in lieu of any such meeting, necessary to
ensure that the number of directors constituting the entire Board of Directors
is consistent with, and that the election as members of the Board of Directors
of those individuals so designated is in accordance with, and to otherwise
effect the intent of, this Article II. In addition, each Stockholder agrees to
vote the shares of such voting stock owned or held of record by such
Stockholder, or over which such Stockholder has voting control, upon any other
matter arising under this Agreement submitted to a vote of the Stockholders in a
manner so as to implement the terms of this Agreement.
(b) In the event of a proposed registered public offering
of Common Stock by the Company, each Stockholder also agrees, upon the request
of the Board of Directors, to vote, at a meeting convened for such purpose, or
to take action by written consent in lieu of such meeting, to increase the
number of authorized shares of Common Stock and, if recommended by the Board of
Directors, to increase the number of issued and outstanding shares of Common
Stock, whether by stock split, stock dividend or otherwise.
(c) No party hereto shall enter into any agreement with
respect to the voting of shares of Company Stock except as provided herein.
2.8 Other Activities of Xxxx and Wesinvest; Fiduciary Duties. It is
understood and accepted that Xxxx and Wesinvest and their Affiliates have or may
hereafter have interests in other business ventures that are or may be
competitive with the activities of the Company and that, to the fullest extent
permitted by law, nothing in this Agreement shall limit the current or future
business activities of Xxxx and Wesinvest or any of their Affiliates whether or
not such activities are
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competitive with those of the Company or otherwise. Except as expressly provided
herein, nothing in this Agreement shall limit in any manner the ability of Xxxx
and Wesinvest to exercise their rights under this Agreement or as a Stockholder
of the Company and this Agreement shall not create, or be deemed or interpreted
to create, any fiduciary or similar duty of any party owing to any other party
or the Company. The foregoing notwithstanding, Xxxx and Wesinvest covenant that
if Xxxx or Wesinvest, as applicable, or one or more of their Affiliates acquires
control of any Person engaged in a business directly competitive with that of
the Company's business (as determined immediately after giving effect of the
merger of Xxxx Life Sciences, Inc. and Technology/Scientific Services, Inc. with
and into the Company), then Xxxx and Wesinvest, as applicable, shall not permit
an individual who serves as an officer or director of such other Person also to
serve as an officer or director of the Company without the approval of a
majority in Company Stock interest of the Management Stockholders. Xxxx and
Wesinvest also covenant that if either directly engages in a business directly
competitive with that of the Company's business, then Xxxx and Wesinvest, as the
case may be, shall not permit an individual directly involved in the management
and activities of such business to serve as a director of the Company and shall
not use or permit the use of confidential information of the Company in such
business.
2.9 Action of the Management Stockholders as a Group. Any reference
herein to an action of the Management Stockholders as a group or acting
collectively shall mean such action approved by the Management Stockholders who
are the Beneficial Owners of in excess of 50% of all Company Stock held by all
Management Stockholders. Any reference herein to an action of one or more
individual Management Stockholders shall refer to the action of such individuals
and not to a group action.
2.10 Insurance. The Company shall use its best efforts to maintain
directors' and officers' insurance (covering directors and officers serving from
time to time after the date hereof) in the amount of $5,000,000 per occurrence
and $20,000,000 in the aggregate.
2.11 Dividends. Prior to the consummation of the Public Event, the
Company shall declare and pay no dividend other than the dividends required to
be paid with respect to the Series A-1 Preferred Stock, Series B Senior
Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock;
provided, that the Company may declare within 30 days of a Public Event or sale
or liquidation of the Company's business dividends accruing with respect to
Special Common Stock and pay such dividends at the closing of such Public Event,
sale or liquidation.
2.12 Stock Options. Promptly following the date hereof, the Company
shall issue options to purchase up to an aggregate of 610,310 shares of Common
Stock to the officers and employees listed on Exhibit 2.12 hereto and shall
issue an option to Xxxx promptly to purchase up to 374,060 shares of Common
Stock, such options to be evidenced by the option agreements substantially in
the form attached hereto as Exhibit 2.12A and 2.12B, respectively.
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ARTICLE III
TRANSFERS OF COMPANY STOCK
3.1 General. No Stockholder shall, directly or indirectly, sell,
assign, pledge, encumber, hypothecate, gift, bequest or otherwise transfer,
whether for value or no value and whether voluntary or involuntary (including,
without limitation, by operation of law or by judgment, levy, attachment,
garnishment, bankruptcy or other legal or equitable proceedings, in each case a
"Transfer") Company Stock except in accordance with this Agreement. The Company
shall not, and shall not permit any transfer agent or registrar for the Company
Stock to, Transfer upon the books of the Company any shares of Company Stock by
any Stockholder to any Transferee (as hereinafter defined), in any manner,
except in accordance with this Agreement, and any purported Transfer not in
compliance with this Agreement shall be void.
3.2 Legends; Shares Subject to this Agreement. In the event a
Stockholder shall Transfer any shares of Company Stock (including any such
Company Stock acquired after the date hereof) to any Person (all Persons
acquiring shares of Company Stock, regardless of the method of transfer, shall
be referred to herein collectively as "Transferees" and individually as a
"Transferee") in accordance with this Agreement, such securities shall
nonetheless bear legends as provided in Section 6.1 hereof, as the case may be;
provided, however, that the provisions of this Section shall not apply in
respect of a sale of shares included in a registered public offering under the
Securities Act or a sale of shares of Company Stock pursuant to Rule 144 under
the Securities Act.
3.3 No Violations or Breach. No Stockholder shall, directly or
indirectly, Transfer any shares of Company Stock at any time if such action
would constitute a violation of any federal or state securities or blue sky laws
or a breach of the conditions to any exemption from registration of shares of
Company Stock under any such laws or a breach of any undertaking or agreement of
such Stockholder entered into pursuant to such laws or in connection with
obtaining an exemption thereunder.
3.4 Permitted Transfers of Company Stock. No Stockholder shall,
directly or indirectly, Transfer any shares of Company Stock except pursuant to
an exercise following compliance with the rights of first refusal set forth in
Article IV hereof, either to the designated Transferee or pursuant to an
exercise of such rights pursuant to a registered public offering under Section
5.1 or 5.2 of this Agreement, provided that a Stockholder may transfer shares of
Company Stock to a Permitted Transferee (as defined in Section 1.1 hereof).
In the event of any such Transfer (including a transfer to a
Permitted Transferee but excluding transfers pursuant to a registered public
offering), the Company shall cause the Transferee to execute a copy of this
Agreement and the Transferee shall be subject to this Agreement and may further
Transfer shares of Company Stock to Transferees only in compliance with this
Agreement as if such Transferee was the original transferor. A Transferee of a
Stockholder shall be treated for purposes of this Agreement as if such
Transferee is the same category of Person (Management
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Stockholders, Xxxx or Wesinvest) as is the transferor and shall in all respects
be bound by the decisions taken pursuant to Section 6.10. Such Transferee shall
be required to provide the Company with an acceptable waiver or limitation of
its rights under this Agreement, execute a valid and irrevocable proxy in favor
of the Transferor satisfactory to the Company and agree to such other waivers,
limitations and restrictions as the Company may reasonably require, including,
in the case of a Permitted Transferee of a Management Stockholder, including any
spouse or former spouse of a Management Stockholder, a waiver of voting rights
prior to a Public Event.
3.5 Documentation Required. Prior to any proposed Transfer of Company
Stock as permitted by this Agreement, if such Transfer is not made pursuant to
an effective registration statement under the Securities Act or pursuant to Rule
144 under the Securities Act, the Stockholder making the Transfer must provide
the Company with an opinion of counsel, reasonably satisfactory in form and
substance to the Company, that such securities may be sold without registration
under the Securities Act.
3.6 No Agreements. Except as set forth in Section 3.4, no Stockholder
shall grant any irrevocable proxy or any other proxy inconsistent with this
Agreement or enter into or agree to be bound by any voting trust with respect to
any shares of Company Stock nor shall any Stockholder enter into any stockholder
agreements or arrangements of any kind with any person with respect to any
shares of Company Stock (whether or not such agreements and arrangements are
with other Stockholders or holders of Company Stock who are not parties to this
Agreement), including agreements or arrangements with respect to the
acquisition, disposition or voting (if applicable) of any shares of Company
Stock, except this Agreement, nor shall any Stockholder act, for any reason, as
a member of a group or in concert with any other persons in connection with the
acquisition, disposition or voting (if applicable) of any shares of Company
Stock, except to the extent consistent with this Agreement.
3.7 Endorsement of Certificates.
(a) Upon the execution of this Agreement, the certificates
representing shares of Company Stock shall be endorsed as provided herein.
(b) All certificates representing shares of Company Stock
hereafter issued to or acquired by any of the Stockholders or their successors
shall bear the legends set forth. The obligations of each party hereto shall be
binding upon each Transferee to whom shares of the applicable Stock are
Transferred by any party hereto except for Transfers pursuant to a registered
public offering. Prior to the consummation of any Transfer except for Transfers
pursuant to such a registered public offering, such party shall cause the
Transferee to execute an agreement in form and substance reasonably satisfactory
to the other parties hereto, providing that such Transferee shall fully comply
with the terms of this Agreement.
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ARTICLE IV
RIGHTS OF FIRST REFUSAL
4.1 Transfer of Company Stock by Management Stockholders.
(a) Notice of Intention. If at any time any of the
Management Stockholders shall desire to Transfer any shares of Company Stock
beneficially owned by it (other than pursuant to a registered public offering),
and if such proposed Transfer is otherwise permitted by Article III, then any
such Selling Stockholder shall deliver written notice of its desire to Transfer
(a "Notice of Intention"), accompanied by a copy of the proposal relating to
such Transfer (the "Sale Proposal"), to (i) each of the other Management
Stockholders, (ii) Xxxx, (iii) Wesinvest, and (iv) the Company, setting forth
such Selling Stockholder's desire to make such Transfer, the number of shares of
Company Stock to be Transferred (the "Offered Shares") and the price at which
such Selling Stockholder proposes to Transfer the Offered Shares (the "Offer
Price").
(b) Notice of Exercise. Upon receipt of the Notice of
Intention, the other Management Stockholders, Xxxx, Wesinvest and the Company
(each, an "Offeree"), in the priority specified below, shall have the right to
purchase at the Offer Price all, but not less than all, of the Offered Shares
available to be purchased under such priority, exercisable by the delivery of
notice to the Selling Stockholder (the "Notice of Exercise"), within 30 calendar
days from the date of receipt of the Notice of Intention. The right of the
Offerees pursuant to this Section 4.2 shall terminate if not exercised within 30
calendar days after receipt by the Company of the Notice of Intention. The
Notice of Intention shall constitute an offer to each of the other Management
Stockholders, Xxxx, Wesinvest and the Company to acquire the Offered Shares in
the following priority: (i) the other Management Stockholders shall be given the
first right to elect to acquire, individually, the Offered Shares, in such
individual proportions equal to the ratio of the number of shares of Company
Stock that each such Management Stockholder then owns to the number of shares of
Company Stock owned by the other non-selling Management Stockholders; (ii) to
the extent that each of the Management Stockholders does not elect to acquire
the Offered Shares, the Management Stockholders may acquire the Offered Shares
in a manner determined by them; (iii) to the extent that the Management
Stockholders, collectively, do not elect to acquire all of the Offered Shares,
Xxxx and Wesinvest may acquire the Offered Shares based on their respective
ownership of Company Stock; (iv) if Xxxx does not elect to acquire the Offered
Shares, Wesinvest may acquire the Offered Shares; (v) if Wesinvest does not
elect to acquire the Offered Shares, Xxxx may acquire the Offered Shares; and
(vi) if Xxxx and Wesinvest do not elect to acquire the Offered Shares, the
Company may elect to acquire the Offered Shares.
4.2 Transfer of Company Stock by Xxxx.
(a) Notice of Intention. If at any time Xxxx shall
desire to Transfer any shares of Company Stock owned by it (other than
pursuant to a registered public offering) and if such proposed Transfer is
otherwise permitted by Article III, then Xxxx shall deliver written notice of
its
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desire to Transfer (a "Notice of Intention"), accompanied by a copy of the
proposal relating to such Transfer (the "Sale Proposal"), to (i) each of the
Management Stockholders, (ii) Wesinvest, and (iii) the Company, setting forth
Xxxx'x desire to make such Transfer, the number of shares of Company Stock to be
Transferred (the "Offered Shares") and the price at which Xxxx proposes to
Transfer the Offered Shares (the "Offer Price").
(b) Notice of Exercise. Upon receipt of the Notice of
Intention, the other Management Stockholders, Wesinvest and the Company (each,
an "Offeree"), in the priority specified below, shall have the right to purchase
at the Offer Price all, but not less than all, of the Offered Shares available
to be purchased under such priority, exercisable by the delivery of notice to
Xxxx (the "Notice of Exercise"), within 30 calendar days from the date of
receipt of the Notice of Intention. The right of the Offerees pursuant to this
Section 4.2 shall terminate if not exercised within 30 calendar days after
receipt by the Company of the Notice of Intention. The Notice of Intention shall
constitute an offer to each of the Management Stockholders, Wesinvest and the
Company to acquire the Offered Shares in the following priority: (i) Wesinvest
may acquire the Offered Shares to the extent that the number of such Offered
Shares plus the number of Offered Shares previously purchased by Wesinvest
pursuant to this Section 4.2(b)(i) does not exceed five-hundred thousand
(500,000) shares of Company Stock in the aggregate (as adjusted for all stock
splits, stock dividends, consolidations, recapitalizations and reorganizations);
(ii) each Management Stockholder and Wesinvest may acquire the Offered Shares
pro rata based on their respective ownership of Company Stock; (iii) to the
extent that each Management Stockholder does not elect to acquire the Offered
Shares, the Management Stockholders, collectively, and Wesinvest may acquire the
Offered Shares pro rata based on their respective ownership of Company Stock;
(iv) if Wesinvest does not elect to acquire the Offered Shares, Management
Stockholders, collectively, may acquire the Offered Shares; (v) to the extent
that the Management Stockholders, collectively, do not elect to acquire the
Offered Shares, Wesinvest may acquire the Offered Shares; and (vi) to the extent
that the Management Stockholders, collectively, and Wesinvest do not elect to
acquire the Offered Shares, the Company may elect to acquire the Offered Shares.
4.3 Transfer of Company Stock by Wesinvest.
(a) Notice of Intention. If at any time Wesinvest shall
desire to Transfer any shares of Company Stock owned by it (other than pursuant
to a registered public offering), and if such proposed Transfer is otherwise
permitted by Article III, then Wesinvest shall deliver written notice of its
desire to Transfer (a "Notice of Intention"), accompanied by a copy of the
proposal relating to such Transfer (the "Sale Proposal"), to (i) each of the
Management Stockholders, (ii) Xxxx, and (iii) the Company, setting forth
Wesinvest' desire to make such Transfer, the number of shares of Company Stock
to be Transferred (the "Offered Shares") and the price at which Wesinvest
proposes to Transfer the Offered Shares (the "Offer Price").
(b) Notice of Exercise. Upon receipt of the Notice of
Intention, the other Management Stockholders, Xxxx and the Company (each, an
"Offeree"), in the priority specified below, shall have the right to purchase
at the Offer Price all, but not less than all, of the Offered
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Shares available to be purchased under such priority, exercisable by the
delivery of notice to Wesinvest (the "Notice of Exercise"), within 30 calendar
days from the date of receipt of the Notice of Intention. The right of the
Offerees pursuant to this Section 4.3 shall terminate if not exercised within 30
calendar days after receipt by the Company of the Notice of Intention. The
Notice of Intention shall constitute an offer to each of the Management
Stockholders, Xxxx and the Company to acquire the Offered Shares in the
following priority: (i) Xxxx may acquire the Offered Shares to the extent that
the number of such Offered Shares plus the number of Offered Shares previously
purchased by Xxxx pursuant to this Section 4.2(b)(i) does not exceed
five-hundred thousand (500,000) shares of Company Stock in the aggregate (as
adjusted for all stock splits, stock dividends, consolidations,
recapitalizations and reorganizations); (ii) each Management Stockholder and
Xxxx may acquire the Offered Shares based on their respective ownership of
Company Stock; (iii) to the extent that each Management Stockholder does not
elect to acquire the Offered Shares, Xxxx and Management Stockholders,
collectively, may acquire the Offered Shares pro rata based on their respective
ownership of Company Stock; (iv) if Xxxx does not elect to acquire the Offered
Shares, Management Stockholders, collectively, may acquire the Offered Shares;
(v) to the extent that the Management Stockholders, collectively, do not elect
to acquire the Offered Shares, Xxxx may acquire the Offered Shares; and (vi) to
the extent that the Management Stockholder, collectively, and Xxxx do not elect
to acquire the Offered Shares, the Company may elect to acquire the Offered
Shares.
4.4 Non-Cash Consideration. If the Offer Price, or a portion of the
Offer Price, involves consideration other than cash, the Offeree shall have the
right to purchase the Offered Shares for a cash amount equal to the sum of the
portion of such consideration which is cash plus the Cash Value of the non-cash
consideration. For purposes of this Section 4.2, Cash Value shall mean, in the
case of securities which are quoted on NASDAQ or any securities exchange, an
amount equal to the average of the high bid low sales price reported on such
exchange for such securities on the date of the Notice of Intention and, in the
case of securities or other property for which there is no such readily
available market price, an amount equal to the fair market value of such
securities or property as determined in good faith by the Board of Directors.
4.5 Obligation to Sell. In the event that any of the Stockholders or
the Company exercise their rights to purchase the Offered Shares in accordance
with Section 4.1, 4.2 or 4.3, as the case may be, then the selling Stockholder
must sell the Offered Shares to such party or parties after not less than 30 and
not more than 90 calendar days from the date of the delivery of the Notice of
Exercise.
4.6 Closing. At the closing of the purchase of the Offered Shares,
the selling Stockholder shall deliver certificates evidencing the Offered
Shares, duly endorsed, or accompanied by written instruments of transfer in form
reasonably satisfactory to the purchaser(s) that delivered a Notice of Exercise,
duly executed by the selling Stockholder, free and clear of any adverse claims,
against payment of the purchase price therefor in cash. The closing date shall
be a date which is not less than 30 nor more than 90 calendar days after the
date of the related Notice of Exercise.
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4.7 Transfer of Offered Shares to Third Parties. If (a) all notices
required to be given pursuant to Section 4.1, 4.2 or 4.3, as applicable, have
been duly given and (b) the Management Stockholders, Wesinvest, Xxxx and/or the
Company, as the case may be, has exercised their respective options to purchase
all of the Offered Shares at the Offer Price, then the selling Stockholder shall
have the right, for a period of 90 calendar days from the earlier of (i) the
expiration of the last applicable option period pursuant to Section 4.1, 4.2 or
4.3, as the case may be, with respect to such Sale Proposal, or (ii) the date on
which the Selling Stockholder receives notice from the Management Stockholders,
Xxxx, Wesinvest and the Company, as the case may be, that they will not exercise
the options granted pursuant to Section 4.1, to sell to a third party the
Offered Shares on terms and conditions no more favorable to such third party
than those set forth in the related Sale Proposal and otherwise in full
compliance with any other applicable provisions of this Agreement.
ARTICLE V
REGISTRATION RIGHTS
5.1 Piggyback Registrations.
(a) Participation. Subject to Section 5.1(b) hereof, if
at any time the Company files a Registration Statement under the Securities Act
with respect to any offering of Common Stock by the Company for its own account
or for the account of any of its equity holders (other than (i) a registration
on Form S-4 or S-8 or any successor form to such Forms, (ii) in connection with
mergers, acquisitions, exchange offers or comparable transactions, or (iii) any
registration of securities as it relates to an offering and sale to management
of the Company pursuant to any employee stock plan or other employee benefit
plan arrangement) then, as soon as practicable (but in no event less than 20
days prior to the proposed date of filing of such registration statement), the
Company shall give written notice of such proposed filing to each Beneficial
Owner of Common Stock (the "Registrable Securities"), and such notice shall
offer the Beneficial Owners of Registrable Securities the opportunity to
register such number of Registrable Securities as each such Beneficial Owner may
request (a "Piggyback Registration"). Subject to Section 5.1(b), the Company
shall include in such registration statement all Registrable Securities
requested within 20 days after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be disposed of by such
Beneficial Owner) to be included in the registration for such offering pursuant
to a Piggyback Registration; provided, however, that if, at any time after
giving written notice of its intention to register any such Common Stock and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay registration of such securities, the Company may, at its
election, give written notice of such determination to each Beneficial Owner of
Registrable Securities and, thereupon, (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), and (ii) in the case of
a determination to delay registering, shall be permitted to delay registering
any Registrable Securities, for the same period as the delay in registering such
other securities. If the offering pursuant to such Registration Statement
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is to be underwritten, then each Beneficial Owner making a request for a
Piggyback Registration pursuant to this Section 5.1(a) must participate in (or
may withdraw from) such underwritten offering and shall not be permitted to make
any other offering in connection with such registration. If the offering
pursuant to such Registration Statement is to be on any other basis, then each
Beneficial Owner making a request for a Piggyback Registration pursuant to this
Section 5.1(a) must participate in (or may withdraw from) such offering on such
basis and shall not be permitted to make an underwritten offering in connection
with such registration. Each Beneficial Owner of Registrable Securities shall be
permitted to withdraw all or part of such Beneficial Owner's Registrable
Securities from a Piggyback Registration at any time prior to the effective date
thereof, unless such Beneficial Owner has agreed with the Company or the
managing underwriter or underwriters to limit such withdrawal right.
(b) Underwriter's Cutback. The Company shall attempt to
cause the managing underwriter or underwriters of a proposed underwritten
offering to permit the Registrable Securities requested to be included in the
registration for such offering under Section 5.1(a) or pursuant to other
piggyback registration rights granted by the Company, if any (the "Piggyback
Securities"), to be included on the same terms and conditions as any similar
securities included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of any such proposed underwritten offering informs
the Company that, in its opinion, the total amount or kind of securities,
including Piggyback Securities, which such Beneficial Owners and any other
persons or entities intend to include in such offering would be reasonably
likely to adversely affect the price or distribution of the securities offered
in such offering or the timing thereof, then the securities to be included in
such registration shall be (i) first, 90% of the securities that the Company
proposes to sell, and (ii) second, the number of securities that, in the opinion
of such underwriter or underwriters, can be sold without an adverse effect on
the price, timing or distribution of the securities to be included (but not less
than 10% of the securities the Company proposes to sell), selected pro rata
among the Beneficial Owners which have requested pursuant to Section 5.l(a) to
be included in such Piggyback Registration, based on the amount of Common Stock
that such Beneficial Owners originally sought to register (provided that
Beneficial Owners of Common Stock resulting from conversion of Series A-1
Preferred Stock or Series C Preferred Stock shall have priority over other
holders or Beneficial Owners of Common Stock).
5.2 Demand Registration Rights.
(a) Upon the delivery to the Company by Xxxx or Wesinvest
of a written request for registration of all or any part of such Stockholder's
Registrable Securities, the Company shall, provided that the requesting
Stockholder at the time of making such request is the Beneficial Owner of at
least 10% or more of the Company Stock, and subject to the provisions hereof,
use its best efforts to effect, as expeditiously as practicable, the
Registration of the Registrable Securities specified in such registration
request in accordance with the intended method of disposition stated therein.
Such Stockholder or Stockholders shall send a copy of the Registration Request
to each other Beneficial Owner concurrently with the giving of such notice to
the Company. The Company shall prepare and file with the Commission a
Registration Statement, on any form that the Company
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is eligible to use, such form to be selected by the Company, which form must be
reasonably acceptable to the Stockholder or Stockholders requesting
Registration, in order to permit the public offering of the Registrable
Securities being offered in accordance with the intended method of disposition
upon the effective date of the Registration Statement relating to such
Registrable Securities; provided, however, the Company is not required to
proceed with the Registration Request if in the opinion of a recognized
investment bank such Registration would not result in a Qualifying IPO and a
Qualifying IPO has not already occurred; provided, however, if Xxxx or
Wesinvest, as the case may be, seeks to include all of its Registrable
Securities in such Registration and such Registration would not result (in the
opinion of such investment bank) in a Qualifying IPO, then the Company shall use
its best efforts to include in such Registration Statement shares of Common
Stock for sale by the Company in such number necessary to cause the Registration
to result in a Qualifying IPO. Except as provided in Section 5.2(b), the Company
must include in such Registration Statement any other shares of Registrable
Securities that a Beneficial Owner possessing demand registration rights
requests to be included in such Registration. The Company may elect to include
in such Registration: (i) any other shares of Common Stock that the Company has
been requested to register by the Beneficial Owners thereof, and (ii) all shares
of Company Stock that the Company may elect to register for its own account,
subject in either case to Section 5.2(b) hereof.
(b) If a requested Registration pursuant to this Section
5.2 involves an underwritten offering, and the managing underwriter shall advise
the Company in writing (with a copy to each Beneficial Owner) that in the good
faith exercise of its reasonable business judgment, the number of shares of
Company Stock requested to be included in such Registration exceeds the number
that can be sold in such offering without materially and adversely affecting the
successful marketing of the Registrable Securities of the requesting Stockholder
or Stockholders or the trading market in Company Stock, the Company will include
in such Registration the number of shares that the Company is so advised can be
sold in such offering without such material adverse effect in the following
priority: (i) first, Registrable Securities requested to be included in such
Registration by each Beneficial Owner possessing demand registration rights (and
if such number exceeds the number advised by such underwriter, the number
requested by each such Beneficial Owner shall be proportionately reduced based
on the ratio of the number each requested over the total requested by such
Beneficial Owners); (ii) second, Registrable Securities of other Beneficial
Owners included in the Registration; and (iii) third, other Company Stock
proposed to be included in such Registration, in accordance with the priorities,
if any, then existing among the Company and the holders of such other
securities.
(c) Registration rights under this Section 5.2 shall only
be available to Xxxx and
Wesinvest for a Registration Statement that becomes effective subsequent to the
expiration of six (6) months from and after the date of the Qualifying IPO. No
Registration Request pursuant to this Section 5.2 hereof may be submitted to the
Company any earlier than forty-five (45) days prior to the expiration of six
months (6) from and after the date of the Qualifying IPO. Except as provided in
Section 5.10 hereof, no Registration Request pursuant to this Section 5.2 may be
submitted to the Company by a Stockholder who at the time of making such request
is not the Beneficial Owner of at least 10% or more of the Company's outstanding
Company Xxxxx.
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(x) Xxxx and Wesinvest shall each be entitled to demand
one Registration pursuant to this Section 5.2 during any 24-month period. A
registration of Registrable Securities will not count as a demand Registration
pursuant to this Section 5.2 until it has become effective under the Securities
Act; provided, however, that if after the Registration Statement has become
effective, the offering of Registrable Securities pursuant to such Registration
is interfered with by a stop order, injunction or other requirement of the SEC
or other governmental agency or court not resulting from the acts or omissions
of any Stockholder or Stockholders whose securities are so Registered and no
Registrable Securities are actually sold thereunder, such registration will be
deemed not to have become effective and shall not count as a demand Registration
pursuant to this Section 5.2; provided, further, that a registration that does
not become effective after the Company has substantially prepared and has filed
or is in a position to file a Registration Statement with respect thereto solely
by reason of the refusal to proceed by the Stockholder or Stockholders
requesting Registration (other than any refusal to proceed based upon (i) the
advice of its counsel that the Registration Statement, or the prospectus
contained therein, contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, which untrue statement or omission is not related to information
provided pursuant to Section 5.4 hereof, or (ii) the failure or inability of the
Company to meet the conditions to closing specified in any underwriting
agreement to which the Company and/or a Beneficial Owner is a party and that was
entered into in connection with such registration).
(e) The Company shall use its best efforts to keep any
Registration Statement filed pursuant to this Section 5.2 effective for the
period of distribution contemplated by such Registration Statement, which in no
event need be later than (i) in the case of a Registration other then a Shelf
Registration, the earlier to occur of (x) the date on which the Registrable
Securities offered under such Registration Statement are sold or the offer
thereof is discontinued by the Stockholder or Stockholders requesting
Registration thereunder, or (y) 180 days after the effective date of such
Registration Statement and (ii) in the case of a Shelf Registration, the earlier
to occur of (x) the date on which the Registrable Securities offered under such
Shelf Registration are sold, or (y) two years after the effective date of such
Shelf Registration.
(f) The Company, at its election, may cause one or more
Registration Statements under Rule 415 as promulgated by the Commission under
the Securities Act, as such Rule may be amended from time to time, or any
successor Rule that may be promulgated by the Commission (each a "Shelf
Registration") to be filed covering the disposition by the Stockholder or
Stockholders of their Registrable Securities.
(g) Notwithstanding the foregoing obligations of the
Company to use its best efforts to cause the Registrable Securities to be
Registered under the Securities Act, if the Company shall furnish to the
Stockholder or Stockholders requesting Registration a certificate signed by an
officer of the Company stating that in the good faith judgment of the Company's
Board of Directors it would be materially detrimental to the Company or its
stockholders for such a Registration
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Statement to be filed as expeditiously as possible and that it is therefore
necessary to postpone the filing of such Registration Statement and, to the
extent practicable, containing a statement of the reasons for such deferral and
an estimate of the anticipated delay, the Company shall have the right, subject
to the provisions of this Section 5.2(g), to postpone such filing for such
period as may be necessary so as not to interfere with corporate transactions of
the Company or other compelling business reasons. Any such certificate must be
furnished within five days after a Registration Request is given or, if later,
as soon as reasonably possible after the determination forming the basis for
such certificate is made by the Company. If as a result of any such
postponement, the Company does not for a period of 180 days after the
postponement effect a Registration of the Registrable Securities desired by a
Stockholder or Stockholders to be Registered pursuant to this Section 5.2, the
Company will use its best efforts promptly to effect such Registration. The
Company may not postpone a Registration in this manner more than once in any
12-month period. If the Company shall postpone the filing of a Registration
Statement pursuant to the foregoing for 45 days after the delivery of the
above-referenced certificate, the Stockholder requesting registration shall have
the right to withdraw the Registration Request by giving written notice to the
Company within fifteen days after such 45-day period and, in the event of such
withdrawal, such Registration Request shall not be counted for purposes of the
requests for Registration to which the Stockholders are entitled pursuant to
Section 5.2.
(h) If a requested Registration pursuant to this Section
5.2 involves an underwritten offering, the Stockholder or Stockholders
requesting Registration shall have the right to select the investment banker and
manager or co-managers that will administer the offering (after consulting with
the Company as to such selection and upon the written consent of the Company,
which consent shall not be withheld unreasonably). The Company will promptly
enter into an underwriting agreement reasonably acceptable to the Company and
such Stockholder or Stockholders with such underwriters for such offering, such
agreement to contain such terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities to the effect and to the extent provided in
Section 5.8 hereof. Each Stockholder requesting Registration shall be a party to
such underwriting agreement and may, at its option, require that any or all of
the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to
and for the benefit of such Stockholder or Stockholders and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to any obligations of such
Stockholder or Stockholders; provided, however, that such Stockholder or
Stockholders shall be required to agree to indemnify the Company and its
officers and directors to the same extent as provided in Section 5.8 hereof.
5.3 Hold-Back Agreements. Each Beneficial Owner of Registrable
Securities (whether or not such Registrable Securities are covered by a
Registration Statement filed pursuant to Section 5.1 or 5.2 hereof) agrees, if
requested by the managing underwriters in an underwritten offering, not to
effect any public sale or distribution of securities of the Company the same as
or similar to those being registered, or any securities convertible into or
exchangeable or exercisable for such securities, in the applicable registration
statement, including a sale pursuant to Rule 144 under the Securities
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Act (except as part of such registration), during the 14-day period prior to,
and during the Holdback Period (as defined below), to the extent timely notified
by the Company or the managing underwriters. For the purpose of this Section
5.3, the "Holdback Period" shall mean, (a) in the case of a Beneficial Owner of
Registrable Securities covered by a Registration Statement filed pursuant to
Section 5.1 or 5.2, the 180-day period beginning on the effective date of such
Registration Statement or the commencement of the public distribution of
securities, and (b) in the case of a Beneficial Owner of Registrable Securities
which are not covered by such a Registration Statement, the 90-day period
beginning on the effective date of the applicable registration statement or the
commencement of the public distribution of securities (or, with respect to a
Piggyback Registration, such longer period of up to 180 days as may be required
by the underwriter for such offering); provided, however, that in the case of
the Qualifying IPO, the Holdback Period with respect to all Beneficial Owners of
Registrable Securities (whether or not such Registrable Securities are covered
by the applicable registration statement) shall mean the 180-day period
beginning on the effective date of such registration statement or the
commencement of the public distribution of securities.
5.4 Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 5.1 and 5.2 hereof, the Company
will use its reasonable efforts to effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and file with the SEC a Registration Statement
with respect to such Registrable Securities and use its reasonable efforts to
cause such Registration Statement to become effective, and, upon the request of
the Stockholders holding a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to 90 days or
until all of the securities registered thereunder are sold, whichever occurs
sooner;
(b) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the Prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement;
(c) furnish to the Stockholders such numbers of copies of
a prospectus, including a preliminary Prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them;
(d) use its reasonable efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Stockholders, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions;
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(e) in the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering, and each
Stockholder participating in such underwriting shall also enter into and perform
its obligations under such an agreement; and
(f) notify each Stockholder holding Registrable Securities
covered by such Registration Statement at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the Prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish to the Company such information
regarding the distribution of such securities and such other information
relating to such Stockholder and its ownership of Registrable Securities as the
Company may from time to time reasonably request in writing. Each Stockholder
holding Registrable Securities agrees to furnish such information to the Company
in a timely manner and to cooperate with the Company as necessary to enable the
Company to comply with the provisions of this Agreement.
5.5 Underwritten Offerings.
(a) Incidental Underwritten Offering. If the Company
proposes to register securities under the Securities Act as contemplated by
Section 5.1 and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any Beneficial Owner of
Registrable Securities pursuant to Section 5.1 and subject to the provisions of
Section 5.1(b), attempt to arrange for such underwriters to include all the
Registrable Securities to be offered and sold by such Beneficial Owner among the
securities of the Company to be distributed by such underwriters. The Beneficial
Owners of Registrable Securities to be distributed by such underwriters shall be
parties to the underwriting agreement between the Company and such underwriters.
(b) Participation in Underwritten Registrations. No
Person may participate in any underwritten registration hereunder unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5.6 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each Registration Statement, the Company will give the
Beneficial Owners of Registrable Securities registered under such Registration
Statement, their underwriters, if any, and their respective counsel and
accountants the opportunity to participate in the preparation of such
Registration Statement, each Prospectus included therein or filed with the SEC,
and, to the extent
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practicable, each amendment thereof or supplement thereto, and give each of them
such access to its books and records (to the extent customarily given to
underwriters of the Company's securities) and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such Beneficial Owners' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act;
provided, however, that any books, records, information or documents that are
designated by the Company in writing as confidential shall be kept confidential
by such Persons unless disclosure thereof is required by law.
5.7 Registration Expenses. The Company shall bear and pay all
expenses reasonably incurred in connection with any registration, filing or
qualification of Registrable Securities whether pursuant to the Selling
Stockholder's right to require such registration in accordance with this Article
V or otherwise, including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto and fees and disbursements of one counsel for the Selling Stockholders
selected by them (which the Company may request be the Company's counsel if such
counsel is reasonably acceptable to such selling Stockholders), but excluding
underwriting discounts and commissions and stock transfer taxes relating to
Registrable Securities.
5.8 Indemnification.
(a) Indemnification by the Company. To the extent
permitted by law, the Company will indemnify and hold harmless each Stockholder,
any underwriter (as defined in the Securities Act) and each person, if any, who
controls such Stockholder or underwriter within the meaning of the Securities
Act or the Exchange Act, against any losses, claims, damages, or liabilities
joint or several) to which they may become subject under the Securities Act, or
the Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, including
any preliminary Prospectus or final Prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
or the Exchange Act or any state securities law; and the Company will pay to
each such Stockholder, underwriter or controlling person, as incurred, any legal
or other expenses reasonably incurred by one law firm retained by them, plus
appropriate local counsel (or such additional law firms retained by a
Stockholder or Stockholders if such Stockholder or Stockholders reasonably
believe there exists a conflict of interest among them), in connection with
investigating or defending any such loss, claim, damage, lability, or action;
provided, however, that the indemnity agreement contained in this Section 5.8(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
lability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability,
or action to the extent that it arises out of
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or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by any such Stockholder, underwriter or controlling person.
(b) Indemnification by the Selling Stockholder. To the
extent permitted by law, each Selling Stockholder will indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the Registration Statement, each person, if any, who controls the Company within
the meaning of the Securities Act, any underwriter, any other Stockholder
selling securities in such Registration Statement and any controlling person of
any such underwriter or other Stockholder, against any losses, claims, damages,
or liabilities joint or several) to which any of the foregoing persons may
become subject, under the Securities Act, or the Exchange Act or other federal
or state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Stockholder expressly for use in connection with such registration; and each
such Stockholder will pay, as incurred, any legal or other expenses reasonably
incurred by any person intended to be indemnified pursuant to this Section
5.8(b), in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this Section 5.8(b) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the indemnifying Stockholder, which consent
shall not be unreasonably withheld; provided, further, that, in no event shall
any indemnity under this Section 5.8(b) exceed the net proceeds from the
offering received by such Stockholder.
(c) Procedures. Promptly after receipt by an indemnified
party under this Section 5.8 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
5.8, deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel (plus appropriate local counsel), with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial in any material respect to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 5.8, but the omission so
to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 5.8.
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(d) Survival. The obligations of the Company and
Stockholders under this Section 5.8 shall survive the completion of any
offering of Registrable Securities in a Registration Statement under this
Agreement, and otherwise.
5.9 Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
Registration Statement pursuant to the duplicative requirements of the
Securities Act, the Company covenants that it will file any reports required to
be filed by it under the Securities Act and the Exchange Act, and it will take
such further action as any Beneficial Owner of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
Beneficial Owner to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Beneficial Owner of Registrable Securities, the Company will deliver to such
Beneficial Owner a written statement as to whether it has complied with such
requirements. The foregoing notwithstanding, the provisions of this Section 5.9
shall not limit in any respect the restrictions on Transfer contained in Article
III hereof.
5.10 Timing of Conversions. Only shares of Common Stock may be
registered under Article V hereof. Demand registration permitted by Section 5.2
hereof may be made in connection with notice of conversion of a series of
convertible Preferred Stock, which conversion shall be effective as of the
effective date of the Registration Statement registering the Common Stock into
which such Preferred Stock converts.
ARTICLE VI
MISCELLANEOUS
6.1 Endorsement of Stock Certificates. All certificates evidencing
shares of the Company Stock shall bear substantially the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF REGISTRATION UNDER SAID ACT AND THE
RULES AND REGULATIONS THEREUNDER AND ALL APPLICABLE STATE SECURITIES
OR "BLUE SKY" LAWS OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ALL
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS."
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In addition, each certificate evidencing shares of the Company Stock
will bear a legend reading substantially as follows until the transfer
restrictions with respect to such shares contained in this Agreement are no
longer effective:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN TRANSFER RESTRICTIONS SET FORTH IN AN AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT DATED AS OF MARCH ___, 1998, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICE,
AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF WITHOUT COMPLYING WITH THE TERMS AND CONDITIONS OF SUCH
AGREEMENT."
6.2 Term.
(a) Unless earlier terminated as expressly provided herein,
this Agreement shall terminate ten years from the date of this Agreement.
(b) The provisions of Article V shall terminate upon the
first to occur of ten years from the date of this Agreement or the date upon
which all of the Registrable Securities have ceased to be such pursuant to
Sections 5.1 or 5.2 hereof or the closing of a Public Merger.
(c) Notwithstanding the foregoing, this Agreement shall
in any event terminate with respect to any Stockholder when such Stockholder
no longer owns any shares of the Company Stock (except if such shares are
transferred in violation of this Agreement).
6.3 Injunctive Relief. It is hereby agreed and acknowledged 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 herein imposed on them 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 such obligations, and if any action should be brought in equity to
enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
6.4 Notices. Any and all notices, designations, consents, offers,
acceptances, or other communications provided for herein (each a "Notice") shall
be given in writing personally by hand-delivery, overnight courier, telegram, or
telecopy which shall be addressed, or sent, to the respective addresses or
telecopy numbers as follows (or such other address or telecopy number as the
Company or any Stockholder may specify for itself to the Company and all other
Stockholders by Notice):
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The Company: Wyle Laboratories, Inc.
000 Xxxxxxxx Xxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
With copies to: Sanders, Barnet, Goldman, Xxxxxx & Mosk,
A Professional Corporation
1901 Avenue of the Stars; Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
Xxxx: Xxxx International Corp.
0000 Xxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
With copies to: Xxxxx, Xxxxxxxx & Xxxxxxx, LLP
0000 Xxxxxxxxx Xxxxxx, XX; Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Wesinvest: Xxxxxxx X. Xxxxx & Sons, Inc.
00000 Xxxxxxxx Xxxxxxxxx; 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Fax:
With copies to: Xxxxxx & Xxxxxxx
000 Xxxx 0xx Xxxxxx; Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax:
Each Stockholder: To such address or telecopy number of such
Stockholder as is reflected on the stock
transfer records of the Company at the time
in question.
All Notices shall be deemed effective, delivered and received (a) at the time
delivered by hand, if personally delivered; (b) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified above and receipt
thereof is confirmed; (c) if given by overnight courier, on the
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business day immediately following the day on which such Notice is delivered to
a reputable overnight courier service; or (d) if given by telegram, when such
Notice is delivered at the address specified above.
Whenever pursuant to this Agreement any Notice is required to be given by any
Stockholder to any other Stockholder or Stockholders, such Stockholder may
request from the Company a list of addresses of all Stockholders of the Company,
which list shall be promptly furnished to such Stockholder.
6.5 Assignment. Except as set forth herein, neither this Agreement
nor any of the rights or obligations hereunder may be assigned by any party
hereto except in connection with the sale of Company Stock by such party in
accordance with the terms of Article IV hereof, unless such assignment receives
the approval of 90% of the Company Stock. Subject to the foregoing (and to the
provisions of Section 6.10 hereof), this Agreement shall inure to the benefit of
and be binding upon the parties, and permitted successors and assigns of each of
the parties. If any Stockholder shall acquire any shares of Company Stock in any
manner, whether by operation of law or otherwise, such Company Stock shall be
held subject to all of the terms of this Agreement.
6.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to the
principles of conflicts of laws.
6.7 Headings. The headings in this Agreement are inserted herein for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
6.8 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
6.9 Entire Agreement. This Agreement contains the entire agreement
among the parties hereto with respect to the subject matter contained herein,
and supersede all prior agreements, negotiations and understandings, whether
written or oral, with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings relating to such subject
matter other than those set forth in this Agreement.
6.10 Amendments and Waiver. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Beneficial Owners of 80% of the amount of
Company Stock then held in the aggregate by the Stockholders (provided, Article
II hereof may not be amended or modified or impaired without the written
approval of Management Stockholders, acting collectively, Xxxx and Wesinvest).
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each Beneficial Owner
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of any Company Stock then outstanding, each future Beneficial Owner of all such
Company Stock, and the Company. In the event of the amendment or modification of
this Agreement in accordance with its terms, the Stockholders shall cause the
Board of Directors to meet within 30 calendar days following such amendment or
modification or as soon thereafter as is practicable for the purpose of adopting
any amendment to the Certificate of Incorporation and By-Laws of the Company
that may be required as a result of such amendment or modification to this
Agreement, and, if required, proposing such amendments to the Stockholders
entitled to vote thereon. No action taken pursuant to this Agreement shall be
deemed to constitute a waiver by the party taking such action of compliance with
any covenants or agreements contained herein. No failure to exercise and no
delay in exercising any right, power or privilege of a party hereunder shall
operate as a waiver or a consent to the modification of the terms hereof unless
given by that party in writing. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any preceding or succeeding breach.
6.11 Inspection. So long as this Agreement shall be in effect, this
Agreement shall be made available for inspection by any Stockholder of the
Company at the principal offices of the Company.
6.12 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts each of which
when so executed shall be deemed to be an original and all of which together
shall constitute one and the same Agreement.
6.13 Not for Benefit of Third Parties. This Agreement is not made
for the benefit of any third party.
6.14 Recapitalizations, Exchanges. Etc., Affecting Common Stock. The
provisions of this Agreement shall apply, to the full extent set forth herein
with respect to shares of the Company Stock, to any and all shares of capital
stock of the Company or any successor or assigns of the Company (whether by
merger, consolidation, sale of assets, or otherwise) which may be issued in
respect of, or in substitution for, shares of the Company Stock, and shall be
approximately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
6.15 Service of Process; Consent to Jurisdiction.
(a) Service of Process. Each party hereto irrevocably
consents to the service of any process, pleading, notices or other papers by the
mailing of copies thereof by registered, certified or first class mail, postage
prepaid, to such party at such party's address set forth herein, or by any other
method provided or permitted under Delaware law.
(b) Consent and Jurisdiction. Each party hereto
irrevocably and unconditionally (i) agrees that any suit, action or other legal
proceeding arising out of this Agreement may be brought in a United States
District Court in the State of Delaware or, if such court does not have
jurisdiction
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or will not accept jurisdiction, in any court of general jurisdiction in
Delaware; (ii) consents to the jurisdiction or any such court in any such suit,
action or proceeding; and (iii) waives any objection which such party may have
to the laying of venue of any such suit, action or proceeding in any such court.
6.16 Confidentiality. The parties hereto shall, and shall cause their
respective officers, directors, employees, and agents and their respective
Affiliates and their respective officers, directors, employees and agents to,
hold confidential and not use in any manner detrimental to the Company all
information they may have or obtain pursuant to their rights under this
Agreement concerning the Company and their respective assets, business,
operations, or prospects; provided, however, that the foregoing shall not apply
to (a) information that is or becomes generally available to the public other
than as a result of the improper disclosure by a party or any of its Affiliates
or such party's or Affiliates' employees, agents, accountants, legal counsel, or
other representatives, (b) information that is or becomes available to a party
or any of its employees, agents, accountants, legal counsel, or other
representatives on a nonconfidential basis prior to its disclosure by the
Company or its employees, agents, accountants, legal counsel, or other
representatives, and (c) information that is required to be disclosed by a party
or any of its Affiliates or such party's or Affiliates' employees, agents,
accountants, legal counsel, or other representatives as a result of any
applicable law, rule, or regulation of any governmental authority or stock
exchange.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
or have caused this Agreement to be duly executed on their respective behalf by
their respective officers or partners thereunto duly authorized, as of the day
and year first above written.
WYLE LABORATORIES, INC.
By: /s/ F. Xxxxxxx Xxxx
----------------------------------------
Its: Chairman of the Board
XXXX INTERNATIONAL CORP.
By: /s/ X. X. Xxxxxx
----------------------------------------
Its: Chairman of the Board and Chief
Executive Officer
WESINVEST PARTNERS, L.P.
By: General Partner Wesinvest Inc.
Its: President /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
MANAGEMENT STOCKHOLDERS'
SIGNATURES START ON NEXT PAGE
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/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
----------------------------- -----------------------------
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx and Xxxxxxxxx Xxxxxx X. Xxxxxxxxx and Xxxxxxx
X. Xxxxxx, Joint Tenants with C. Everleigh, Joint Tenants with
Right of Survivorship Right of Survivorship
By:/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------- -----------------------------
/s/ Xxxxxx X. Xxxxxxx
----------------------------- /s/ Xxxxx Xxxxxxxxx
Xxxxxx X. Xxxxxxx -----------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxx
----------------------------- /s/ Xxxxxx X. Xxxxxxxx
Xxxxx Xxxxx -----------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxx Santa Xxxx, Jr.
-----------------------------
Xxxxxx Santa Xxxx, Jr. /s/ Xxxxxxxxxxx Xxxxxxxx
-----------------------------
Xxxxxxxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxxx /s/ Xxxx Xxxxxxx
-----------------------------
Xxxx Xxxxxxx
/s/ Xxxxxxxx X. XxXxxxxx
-----------------------------
Xxxxxxxx X. XxXxxxxx /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxxx
Signature Page to
Amended and Restated
Stockholders' Agreement
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Xxxx X. Xxxxxxx and Xxxxx X. /s/ Xxxxxxxx X. Xxxxxx
Xxxxxxx, Trustees of the --------------------------------
Xxxxxxx Family Trust Dated Xxxxxxxx X. Xxxxxx
October 10, 1992
/s/ Xxxx X. Xxxx
By: /s/ Xxxx X. Xxxxxxx --------------------------------
----------------------------- Xxxx X. Xxxx
/s/ Xxxxx Xxxxxxxxx
-------------------------------- /s/ Xxxx Xxxxxxxxxxx
Xxxxx Xxxxxxxxx --------------------------------
Xxxx Xxxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx Xxxx Xxxxxxxxxxx and Xxxxx
Xxxxxxxxxxx, Community Property
/s/ Xxxxxx X. Xxxxxx
-------------------------------- By: /s/ Xxxx Xxxxxxxxxxx
Xxxxxx X. Xxxxxx -----------------------------
Xxxxxx X. Xxxxxx and Xxxxx /s/ Xxxxxxx X. Xxxx
X. Xxxxxx, Community Property --------------------------------
Xxxxxxx X. Xxxx
By: /s/ Xxxxxx X. Xxxxxx
----------------------------- /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------- /s/ Xxxxxx XxxXxxxxx
Xxxxxx X. Xxxxxxx --------------------------------
Xxxxxx XxxXxxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------- /s/ Xxxxx Xxxxx
Xxxxxxx X. Xxxxx --------------------------------
Xxxxx Xxxxx
/s/ Xxxx X. Xxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxx
Signature Page to
Amended and Restated
Stockholders' Agreement
31
32
Xxxxx Xxxxx and Xxxxxxxx Xxxxx, Xxxxx Xxxx and Xxxxxx
Joint Tenants with Right of Chiang Shih,
Survivorship Community Property
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxx
---------------------------- ----------------------------
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxx
------------------------------- -------------------------------
Xxxxxx X. Xxxxxx Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxx and Xxxxxxxxx X. Xxxx X. Xxxxxxx and Xxxxxxx
Xxxxx, Co-Trustees of the X. Xxxxxxx, Joint Tenants
Xxxxx Living Trust with Right of Survivorship
UA DTD 8/29/96
By: /s/ Xxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxx ----------------------------
----------------------------
/s/ Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxx -------------------------------
------------------------------- Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx and Xxxxxxx /s/ Xxxxxx X. Xxxxx
X. Xxxxxx, Community Property -------------------------------
Xxxxxx X. Xxxxx
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------- Xxxxxx X. Xxxxx and Xxxxxxxxxx
X. Xxxxx, Joint Tenants
/s/ Xxx X. Xxxxxx
-------------------------------
Xxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------
/s/ Xxxxx Xxxx
------------------------------- /s/ Xxxxxx X. Xxxxx
Xxxxx Xxxx -------------------------------
Xxxxxx X. Xxxxx
Signature Page to
Amended and Restated
Stockholders' Agreement
32
33
/s/ L. Xxxxx Xxxxx /s/ Xxxx X. Xxxx
------------------------------- -------------------------------
L. Xxxxx Xxxxx Xxxx X. Xxxx
/s/ Xxxx X. Xxxxx /s/ F. Xxxxxxx Xxxx
------------------------------- -------------------------------
Xxxx X. Xxxxx F. Xxxxxxx Xxxx
Xxxx X. Xxxxx and Xxxxx X. Xxxxx, F. Xxxxxxx Xxxx and Xxxxxxx X.
Joint Tenants with Right of Wyle, Community Property
Survivorship
By: /s/ F. Xxxxxxx Xxxx
By: /s/ Xxxx X. Xxxxx ----------------------------
----------------------------
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxxxxxxx X. Xxxxxx
------------------------------- -------------------------------
Xxxxxxx Xxxxx Xxxxxxxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxxxxxx X. Xxxxxx and Xxxxxx
Xxxxxxx, as Trustees under Yiakas, Community Property
Xxxxxxx (Xxxx X. and Xxxxx X.)
October 13, 1987 Family Trust
By: /s/ Xxxxxxxxxxxx X. Xxxxxx
----------------------------
By: /s/ Xxxx X. Xxxxxxx
----------------------------
/s/ Xxxxxx Xxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxx
WESINVEST PARTNERS, L.P.
By: General Partner Wesinvest Inc.
Its: President /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Signature Page to
Amended and Restated
Stockholders' Agreement
33
