1
EXHIBIT 10.24
EXECUTION COPY
CO-SALE AGREEMENT
This CO-SALE AGREEMENT (this "Agreement"), dated as of May 7, 2001, is
by and among (a) The Xxxxxx Group, Inc., a Massachusetts corporation (the
"Company"), (b) Berkshire Fund IV, L.P. ("Berkshire IV"), (c) Berkshire Fund V,
Limited Partnership ("Berkshire V"), (d) Berkshire Investors LLC, (e) Berkshire
Fund IV Investment Corp., (f) Berkshire Fund V Investment Corp., and (g) Fleet
National Bank, Antares Capital Corporation, Captiva IV Finance Ltd., Chase
Manhattan Bank, Citizens Bank of Massachusetts, Comerica Bank, First
Massachusetts Bank, Franklin Floating Rate Trust, Great Point CLO 1999-1 Ltd.,
Xxxxxx Financial, Inc., Key Corporate Capital, Inc., LaSalle Bank National
Association, Syndicated Loan Funding Trust, Magnetite Asset Investors LLC,
Xxxxxxx Xxxxx Prime Rate Portfolio, Xxxxxxx Xxxxx Senior Floating Rate Fund,
Inc., National City Bank, Pilgrim America High Income Investments Ltd., Pilgrim
CLO 1999-1 Ltd., SEQUILS-Pilgrim I, Ltd., Pilgrim Prime Rate Trust, The
Provident Bank, Star Bank, National Association, Transamerica Business Credit
Corporation, Travelers Corporate Loan Fund Inc., The Travelers Insurance
Company, Xxx Xxxxxx Prime Rate Income Trust and Xxx Xxxxxx Senior Income Trust
(together with their respective successors and assigns, each a "Bank" and,
collectively, the "Banks").
WHEREAS, Berkshire IV and Berkshire V own the majority of the issued
and outstanding capital stock of the Company;
WHEREAS, pursuant to the terms of the Warrant Purchase Agreement dated
as of the date hereof (the "Warrant Purchase Agreement") between the Company and
the Banks, the Company has issued Common Stock Warrants to the Banks; and
WHEREAS, the parties hereto wish to set forth certain rights and
obligations with regard to the transfer of the Company's securities;
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
Section 1. DEFINITIONS. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
Affiliate. Affiliate shall mean, with respect to any Stockholder, any
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such Stockholder and shall include (a) any Person
who is a director or beneficial holder of at least 10% of the then
2
-2-
outstanding capital stock (or partnership interests or other shares of
beneficial interest) of such Stockholder and Family Members of any such Person,
(b) any Person of which such Stockholder or an Affiliate (as defined in clause
(a) above) of such Stockholder directly or indirectly, either beneficially owns
at least 10% of the then outstanding capital stock (or partnership interests or
other shares of beneficial interest) or constitutes at least a 10% equity
participant, (c) any Person of which an Affiliate (as defined in clause (a)
above) of such Stockholder is a partner, director, officer or executive
employee, (d) in the case of a specified Person who is an individual, Family
Members of such Person and (e) in case of the Berkshire Stockholders, any
general or limited partner of such Berkshire Stockholder.
Banks. See preamble.
Bank Securities. Bank Securities shall mean (a) the Common Stock
Warrants and any shares of Common Stock issued upon exercise of the Common Stock
Warrants, (b) all other shares of the Company's capital stock purchased by or
issued from time to time to any Bank, (c) all shares of the Company's capital
stock issued or issuable upon conversion of such shares, and (d) all shares of
the Company's capital stock issued with respect to such shares by way of stock
dividend or stock split or in connection with any merger, consolidation,
recapitalization or other reorganization affecting the Company's capital stock.
Bank Securities will continue to be Bank Securities in the hands of any holder
and each transferee thereof will succeed to the rights and obligations of a
holder of Bank Securities hereunder, provided that Bank Securities will cease to
be Bank Securities when transferred (i) to the Company, (ii) to a Berkshire
Stockholder or (iii) pursuant to a Public Sale.
Bank Stockholder. Bank Stockholder shall mean any Bank for so long as
it holds Bank Securities and any other Person to whom Bank Securities are
transferred for so long as such Person holds any Bank Securities.
Berkshire Securities. Berkshire Securities shall mean (a) the shares of
Common Stock held by the Berkshire Stockholders on the date hereof, (b) all
other shares of the Company's capital stock purchased by or issued from time to
time to a Berkshire Stockholder (c) all shares of the Company's capital stock
issued or issuable upon conversion of such shares, and (d) all shares of the
Company's capital stock issued with respect to such shares by way of stock
dividend or stock split or in connection with any merger, consolidation,
recapitalization or other reorganization affecting the Company's capital stock.
Berkshire Securities will continue to be Berkshire Securities in the hands of
any holder and each transferee thereof will succeed to the rights and
obligations of a holder of Berkshire Securities hereunder, provided that
Berkshire Securities will cease to be Berkshire Securities when transferred (i)
to the Company, (ii) to a Bank Stockholder or (iii) pursuant to a Public Sale.
3
-3-
Berkshire Stockholder. Berkshire Stockholder shall mean Berkshire IV,
Berkshire Investors LLC, Berkshire Fund IV Investment Corp, Berkshire V and
Berkshire Fund V Investment Corp. for so long Berkshire IV, Berkshire Investors
LLC, Berkshire Fund IV Investment Corp, Berkshire V, and Berkshire Fund V
Investment Corp. hold Berkshire Securities and any other Person to whom
Berkshire IV or Berkshire V transfers Berkshire Securities for so long as such
Person holds such Berkshire Securities.
Common Stock. Common Stock shall mean the Company's Common Stock, $.001
par value per share, and any shares of any other class of capital stock of the
Company hereafter issued which are (i) not preferred as to dividends or assets
over any class of stock of the Company, (ii) not subject to redemption pursuant
to the terms thereof, or (iii) issued to the holders of shares of Common Stock
upon any reclassification thereof.
Common Stock Warrants. Common Stock Warrants shall mean the Common
Stock Warrants issued to the Banks pursuant to the Warrant Purchase Agreement.
Company. See preamble.
Eligible Securities. Eligible Securities shall mean, at any time, all
Securities consisting of shares of Common Stock.
Family Members. Family Members shall mean, with respect to any
individual, any Related Person or Family Trust of such individual.
Family Trust. Family Trust shall mean, with respect to any individual,
any trust created for the benefit of one or more of such individual's Related
Persons and controlled by such individual.
Instrument of Accession. Instrument of Accession shall mean an
Instrument of Accession in the form of Schedule 1 hereto.
Majority Bank Holders. Majority Bank Holders shall mean the holder or
holders at the relevant time of determination of fifty-one percent (51%) or more
of the number of then issued and outstanding shares of Common Stock included in
the Bank Securities (assuming the exercise of any outstanding Common Stock
Warrants).
Majority Berkshire Holders. Majority Berkshire Holders shall mean the
holder or holders at the relevant time of determination of fifty-one percent
(51%) or more of the number of then issued and outstanding shares of Common
Stock included in the Berkshire Securities.
Offer Notice. See Section 2.1.
Participating Stockholders. See Section 2.1.
Permitted Transfer. See Section 2.1.
4
-4-
Person. Person shall mean an individual, partnership, limited liability
company, corporation, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
Public Sale. Public Sale shall mean any sale of Common Stock to the
public pursuant to a public offering registered under the Securities Act or to
the public through a broker or market-maker pursuant to the provisions of Rule
144 (or any successor rule) adopted under the Securities Act.
Qualified Public Offering. Qualified Public Offering shall mean the
Company's underwritten public offering pursuant to an effective registration
statement under the Securities Act covering the offer and sale of shares of
Common Stock in which not less than $20,000,000 of gross proceeds from such
public offering are received by the Company for the account of the Company.
Related Persons. Related Persons shall mean, with respect to any
individual, such individual's parents, spouse, children and grandchildren.
Securities. Securities shall mean the Bank Securities and the Berkshire
Securities.
Securities Act. Securities Act shall mean the Securities Act of 1933,
as amended.
Stockholders. Stockholders shall mean, collectively, the Bank
Stockholders and the Berkshire Stockholders.
Transfer. See Section 2.1.
Transferring Stockholder. See Section 2.1.
Warrant Purchase Agreement. See preamble.
Section 2. CO-SALE RIGHTS.
2.1. Co-Sale Rights. Except as set forth in Section 2.2 hereof, no
Berkshire Stockholder may sell, assign, pledge or otherwise transfer
("Transfer") any Berkshire Securities without first complying with the
provisions of this Section 2.1. At least 30 days prior to any such Transfer, the
transferring Berkshire Stockholder (the "Transferring Stockholder") shall
deliver a written notice (the "Offer Notice") to the Company and to each of the
Bank Stockholders holding Securities of, or Securities convertible into or
exercisable for, the class, classes or series to be transferred. The Offer
Notice will disclose in reasonable detail the proposed number of Securities to
be transferred, the class, classes or series of such Securities, the proposed
price, terms and conditions of the Transfer and the identity of the transferee.
Each of the Bank Stockholders holding Securities of, convertible into or
exercisable for, the class or series to be transferred may elect to participate
5
-5-
in the contemplated sale by delivering written notice to the Transferring
Stockholder within 5 days after delivery of the Offer Notice. If any of the Bank
Stockholders elects to participate in such sale (the "Participating
Stockholders"), each of the Transferring Stockholder and the Participating
Stockholders will be entitled to sell in the contemplated sale a number of
Eligible Securities of such class or series equal to the product of (i) the
fraction, the numerator of which is the sum of the number of Eligible Securities
of such class or series (on a fully-diluted basis) held by such Person plus the
number of Eligible Securities of such class or series issuable upon the
conversion or exercise of the Securities held by such Person, and the
denominator of which is the aggregate number of Eligible Securities of such
class or series (on a fully-diluted basis) owned by (or issuable to, upon the
conversion or exercise of Securities held by) the Transferring Stockholder and
the Participating Stockholders, multiplied by (ii) the number of Eligible
Securities of such class or series (on a fully-diluted basis) to be sold in the
contemplated sale.
For example, if the notice from the Transferring Stockholder
contemplated a sale of 100 shares of Common Stock by the Transferring
Stockholder and the Transferring Stockholder at such time owns 300
shares of Common Stock, and if one Participating Stockholder elects to
participate in such sale and such Participating Stockholder owns 200
shares of Common Stock (on a fully-diluted basis), such Transferring
Stockholder would be entitled to sell 60 shares of Common Stock
(300/500 x 100 shares) and such Participating Stockholder would be
entitled to sell 40 shares of Common Stock (200/500 x 100 shares).
Any Participating Stockholder holding Securities exercisable for Eligible
Securities of the class or series to be transferred shall be required to
exercise such Securities to the extent required to hold the number of Eligible
Securities to be transferred by such Participating Stockholder. The Transferring
Stockholder will use its best efforts to obtain the agreement of the prospective
transferee(s) to the participation of the Participating Stockholders in any
contemplated sale and will transfer its Eligible Securities to the prospective
transferee(s) only if the prospective transferee(s) allows the participation of
the Participating Stockholders on terms identical to those agreed to by the
Transferring Stockholder.
2.2. Exempted Transfers. Notwithstanding any provision herein to the
contrary, any Berkshire Stockholder may Transfer Securities (a) to any Affiliate
of such Berkshire Stockholder, (b) to any bank, financial institution or other
lender to such Berkshire Stockholder or any Affiliate of such Berkshire
Stockholder as collateral security for any obligations of such Berkshire
Stockholder or any Affiliate of such Berkshire Stockholder under any financing
agreement or guarantee, or (c) pursuant to a Public Sale, in each case without
complying with the co-sale provisions of Section 2.1 above; provided, that (x)
the restrictions contained in this Section 2 will continue to
6
-6-
be applicable to the Securities after any transfer pursuant to clauses (a) or
(b) above and (y) the transferee of such Securities in any Transfer pursuant to
clauses (a) or (b) above shall either be a party hereto or shall have executed
and delivered to the Company an Instrument of Accession.
2.3. Transfers of Securities in Breach of this Agreement. In the event
of any Transfer of Securities in breach of this Agreement, commencing
immediately upon the date of such attempted Transfer (a) such Transfer shall be
void and of no effect, (b) no dividend of any kind or any distribution pursuant
to any liquidation, redemption or otherwise shall be paid by the Company to the
purported transferee in respect of such Securities (all such rights to payment
by the transferring Stockholder and/or the purported transferee being deemed
waived unless such Transfer in breach of this Agreement has been rescinded
within thirty (30) days of such Transfer), (c) the voting rights of such
Securities, if any, shall terminate, and (d) neither the transferring
Stockholder nor the purported transferee shall be entitled to exercise any
rights with respect to such Securities until such Transfer in breach of this
Agreement has been rescinded.
2.4. Classes of Securities. Notwithstanding anything herein to the
contrary, for purposes of this Section 2, all classes and/or series of Common
Stock shall be treated as a single class.
Section 3. SALE OF THE COMPANY.
3.1. Approved Sale. In the event any of the Company's stockholders,
individually or collectively (the "Selling Stockholders"), determine to sell
more than 50% of the then outstanding shares of Common Stock of the Company on
an arm's length basis to any Person other than an Affiliate of a Berkshire
Stockholder and such sale is approved by the Company's Board of Directors (an
"Approved Sale"), each Bank Stockholder agrees, upon five (5) days written
notice from the Selling Stockholders, to (i) sell that number of shares of
Common Stock (on a fully-diluted basis) or any Common Stock Warrants underlying
such Common Stock owned by such Bank Stockholder as shall equal the product of
(a) a fraction, the numerator of which is the aggregate number of shares of
Common Stock proposed to be sold by the Selling Stockholders and the denominator
of which is the aggregate number of shares of Common Stock actually owned by the
Selling Shareholders as of the date of the proposed sale, multiplied by (b) the
number of shares of Common Stock (on a fully-diluted basis) actually owned by
such Bank Stockholder as of the date of the proposed sale, and (ii) upon
request, deliver such Bank Stockholder's shares of Common Stock (together with
executed instruments of transfer) in escrow (pending receipt of the purchase
price therefor) to counsel for the Company in such sale.
3.2. Received Consideration. The obligations of the Bank Stockholders
with respect to any Approved Sale are subject to the satisfaction of the
conditions that (i) upon the consummation of such sale, all of the sellers of
Common Stock will receive the same form and amount of consideration per share of
Common Stock, or
7
-7-
if any such sellers are given an option as to the form and amount of
consideration to be received per share of Common Stock, all holders of Common
Stock will be given the same option, (ii) the representations and warranties to
be made by any Bank Stockholder shall be limited to enforceability of its
obligations and title to its shares of Common Stock, (iii) any indemnification
obligations of the Bank Stockholders shall be several, not joint, and shall
(other than with respect to the representations and warranties referenced in the
foregoing clause (ii)) be pro rata based on the number of shares of Common Stock
(on a fully-diluted basis) owned and (iv) the aggregate liability of each such
seller of Common Stock with respect to any indemnification obligations in
connection with such Approved Sale shall be limited to the net proceeds received
by such seller in connection with such Approved Sale. It shall be a condition to
any Approved Sale structured as a stock sale that the Company will use its best
efforts to make such provisions as are necessary to ensure that the holders of
any outstanding Common Stock Warrants will be given the option of either
exercising their Common Stock Warrants and selling the shares of Common Stock
thereupon issued or selling their Common Stock Warrants (less the exercise price
thereof).
Section 4. SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
Section 5. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and thereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
Section 6. SUCCESSORS AND ASSIGNS. This Agreement will bind and inure
to the benefit of and be enforceable by the Company and the Stockholders and
their respective successors and assigns.
Section 7. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
will constitute one and the same agreement.
Section 8. REMEDIES. The Stockholders will be entitled to enforce their
rights under this Agreement specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor. The parties
hereto agree and acknowledge that money damages is not an adequate
8
-8-
remedy for any breach of the provisions of this Agreement and that any
Stockholder shall have the remedy of specific performance and/or injunctive
relief in order to enforce or prevent any violation of the provisions of this
Agreement. In the event of any dispute involving the terms of this Agreement,
the prevailing party shall be entitled to collect reasonable fees and expenses
incurred by the prevailing party in connection with such dispute from the other
parties to such dispute.
Section 9. NOTICES. Any notice provided for in this Agreement will be
in writing and will be deemed properly delivered if either personally delivered
or sent by telecopier, overnight courier or mailed certified or registered mail,
return receipt requested, postage prepaid to the recipient (a) if to any
Stockholder, at the address listed for such Stockholder in the stock records of
the Company and (b) if to the Company, at Xxx Xxxxxx Xxx, Xxxxxxx, Xxxxxxxxxxxxx
00000, Attention: President and to Xxxxxx Xxxxxx, P.C., at Xxxxxxxxx Xxxxxxxxxx
& Xxxx, L.L.P., 000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000. Any
such notice shall be effective (i) if delivered personally or by telecopier,
when received, (ii) if sent by overnight courier, when receipted for, and (iii)
if mailed, 3 days after being mailed as described above. The Company agrees to
make available to each Stockholder upon request an address list of all
Stockholders to ensure correct delivery of all notices hereunder.
Section 10. AMENDMENT AND WAIVER. No modification, amendment or waiver
of any provision of this Agreement will be effective against the Company or the
Stockholders unless such modification, amendment or waiver is approved in
writing by the Majority Bank Stockholders and the Majority Berkshire
Stockholders. The failure of any party to enforce any of the provisions of this
Agreement will in no way be construed as a waiver of such provisions and will
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
Section 11. TERMINATION. This Agreement will terminate upon the
earliest to occur of (a) the completion of any voluntary or involuntary
liquidation or dissolution of the Company, (b) the completion of a Qualified
Public Offering or (c) the sale of all or substantially all of the Company's
assets or of a majority of the outstanding Common Stock to a third party
(whether pursuant to a merger, consolidation or otherwise).
SECTION 12. GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
Section 13. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
9
-9-
Section 14. CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party.
Section 15. CALCULATION OF FULLY-DILUTED EQUITY. All references herein
to calculations of the Company's equity or any type or class thereof "on a fully
diluted basis" or as "fully diluted" or similar terms shall mean such equity or
type or class thereof at any date as diluted by the issuance of all shares of
such equity or type or class thereof then issuable upon the exercise of all then
outstanding and exercisable warrants, options or convertible securities pursuant
to which the Company is then obligated to issue such equity or type or class
thereof, but specifically excluding all shares issuable under stock options
which are not then exercisable.
* * *
10
IN WITNESS WHEREOF, the parties hereto have executed this Co-Sale
Agreement on the day and year first above written.
THE XXXXXX GROUP, INC.
By:__________________________________________________
Title:
BERKSHIRE FUND IV, L.P.
By: Fourth Berkshire Associates LLC, its General Partner
By:__________________________________________________
Title:
BERKSHIRE INVESTORS LLC
By:__________________________________________________
Title:
BERKSHIRE FUND IV INVESTMENT CORP.
By:__________________________________________________
Title:
BERKSHIRE FUND V, LIMITED PARTNERSHIP
By: Fifth Berkshire Associates LLC, its General Partner
By:__________________________________________________
Title:
BERKSHIRE FUND V INVESTMENT CORP.
By:__________________________________________________
Title:
11
-2-
FLEET NATIONAL BANK (f/k/a BankBoston, N.A.)
By:
----------------------------------------
Name:
Title:
SYNDICATED LOAN FUNDING TRUST
By: XXXXXX COMMERCIAL PAPER INC., not in its individual
capacity, but solely as Asset Manager
By:
----------------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By:
----------------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
By:
----------------------------------------
Name:
Title:
COMERICA BANK
By:
----------------------------------------
Name:
Title:
KEY CORPORATE CAPITAL INC.
By:
----------------------------------------
Name:
Title:
00
-0-
XXXXXXXX XXXX XX XXXXXXXXXXXXX,
a Massachusetts Bank
By:
----------------------------------------
Name:
Title:
STAR BANK, NATIONAL ASSOCIATION
By:
----------------------------------------
Name:
Title:
ANTARES CAPITAL CORPORATION
By:
----------------------------------------
Name:
Title:
NATIONAL CITY BANK
By:
----------------------------------------
Name:
Title:
THE PROVIDENT BANK
By:
----------------------------------------
Name:
Title:
00
-0-
XXXXXXXX XXXXXXXX RATE TRUST
By:
----------------------------------------
Name:
Title:
THE TRAVELERS INSURANCE COMPANY
By:
----------------------------------------
Name:
Title:
TRAVELERS CORPORATE LOAN FUND INC.
By: Travelers Asset Management International Company LLC
By:
----------------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By:
----------------------------------------
Name:
Title:
MAGNETITE ASSET INVESTORS LLC
By:
----------------------------------------
Name:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By:
----------------------------------------
Name:
Title:
00
-0-
XXXXXXX XXXXX RATE TRUST
By:
----------------------------------------
Name:
Title:
PILGRIM AMERICA HIGH INCOME INVESTMENTS LTD.
By:
----------------------------------------
Name:
Title:
SEQUILS-PILGRIM I, LTD.
By:
----------------------------------------
Name:
Title:
CAPTIVA IV FINANCE LTD.
as advised by Pacific Investment Management Company LLC
By:
----------------------------------------
Name:
Title:
PILGRIM CLO 1999 - 1 LTD.
By:
----------------------------------------
Name:
Title:
GREAT POINT CLO 1999 - 1 LTD.
By:
----------------------------------------
Name:
Title:
15
-6-
FIRST MASSACHUSETTS BANK
By:
----------------------------------------
Name:
Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
----------------------------------------
Name:
Title:
CHASE MANHATTAN BANK not in
its individual capacity,
but solely as Trustee of
Antares Funding Trust under
the Trust Agreement dated
as of November 30, 1999
(the "Trust Agreement")
between Antares Funding,
L.P. (the "Depositor") and
Chase Manhattan Bank as
trustee (the "Trustee")
By:
----------------------------------------
Name:
Title:
XXX XXXXXX SENIOR INCOME TRUST
By:
----------------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By:
----------------------------------------
Name:
Title:
16
-7-
Accepted:
THE XXXXXX GROUP
By:__________________________________________________
Date:________________________________________________
17
SCHEDULE 1
TO CO-SALE
AGREEMENT
Instrument of Accession
The undersigned, ____________________, in order to become the owner or
holder of ________ shares of Common Stock, $ par value per share, of THE XXXXXX
GROUP, INC., a Massachusetts corporation, hereby agrees to become [a Berkshire]
[a Bank] Stockholder party to that certain Co-Sale Agreement, dated as of May ,
2001 (the "Co-Sale Agreement"), a copy of which is attached hereto. This
Instrument of Accession shall become a part of such Co-Sale Agreement.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Signature:__________________________________________
Address:____________________________________________
____________________________________________
____________________________________________
Date: ____________________________________________
Accepted:
THE XXXXXX GROUP, INC.
By:__________________________________________________
Date:________________________________________________
