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AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Dated as of February 16, 1996
By and Among
OSI HOLDINGS CORP.
THE MDC ENTITIES,
RAINBOW TRUST ONE (FORMERLY ACCOUNT
PORTFOLIOS TRUST ONE),
RAINBOW TRUST TWO (FORMERLY ACCOUNT
PORTFOLIOS TRUST TWO),
CHEMICAL EQUITY ASSOCIATES, L.P.,
THE CLIPPER ENTITIES,
THE MANAGEMENT STOCKHOLDERS
and
THE NON-MANAGEMENT STOCKHOLDERS
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TABLE OF CONTENTS
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ARTICLE I CERTAIN DEFINITIONS............................................ 2
ss. 1.1 Certain Definitions.......................................... 2
ARTICLE II TRANSFER OF SHARES............................................. 4
ss. 2.1 Restrictions.................................................. 4
ss. 2.2 Permitted Transfers........................................... 5
ss. 2.3 Sales by MDC Subject to Tag-Along Rights...................... 6
ss. 2.4 Grant to MDC of Bring-Along Rights............................ 7
ss. 2.5 Call Upon Termination of Management Stockholder's
Employment.................................................... 8
ss. 2.6 Grant of Preemptive Rights to the other Stockholders Upon
Sale to MDC................................................... 11
ss. 2.7 Registration Rights........................................... 11
ARTICLE III BOARD OF DIRECTORS OF THE COMPANY.............................. 14
ss. 3.1 Board of Directors............................................ 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE
COMPANY AND THE STOCKHOLDERS................................... 15
ss. 4.1 Representations and Warranties of the Stockholders............ 15
ss. 4.2 Representations and Warranties of the Company................. 16
ARTICLE V MISCELLANEOUS.................................................. 17
ss. 5.1 Entire Agreement.............................................. 17
ss. 5.2 Captions...................................................... 17
ss. 5.3 Counterparts.................................................. 17
ss. 5.4 Notices....................................................... 17
ss. 5.5 Successors and Assigns........................................ 19
ss. 5.6 Governing Law................................................. 19
ss. 5.7 Submission to Jurisdiction.................................... 19
ss. 5.8 Benefits Only to Parties...................................... 20
ss. 5.9 Termination................................................... 20
ss. 5.10 Publicity..................................................... 21
(i)
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ss. 5.11 Confidentiality............................................... 21
ss. 5.12 Fees; Expenses................................................ 21
ss. 5.13 Amendments; Waivers........................................... 22
SCHEDULE A
(ii)
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement"),
dated as of February 16, 1996, by and among OSI Holdings Corp., a Delaware
corporation (the "Company"), XxXxxx De Leeuw & Co. III, L.P., a California
limited partnership, XxXxxx De Leeuw & Co. Offshore (Europe) III, L.P., a
Bermuda limited partnership, XxXxxx De Leeuw & Co. III Offshore (Asia), L.P., a
Bermuda limited partnership, Gamma Fund LLC, a California limited liability
company (each individually, an "MDC Entity," collectively the "MDC Entities" and
collectively together with their Related Persons (as such term is defined in
Section 1.1), "MDC"), Rainbow Trust One (formerly Account Portfolios Trust One),
a trust organized and qualified under the laws of Georgia ("APT-1"), Rainbow
Trust Two (formerly Account Portfolios Trust Two), a trust organized and
qualified under the laws of Georgia ("APT-2" and together with APT-1, "APT"),
Chemical Equity Associates, L.P. ("CEA"), the Clipper Entities (as defined
below), the individuals listed on Schedule A attached hereto under the heading
"Management Stockholders" (each individually, a "Management Stockholder" and
collectively, the "Management Stockholders," it being understood that any other
member of the management of the Company who becomes a stockholder of the Company
(including through the receipt of Call Shares (as defined below)) shall be a
Management Stockholder) and the Persons listed in Schedule A under the heading
"Non-Management Stockholders" (each individually a "Non-Management Stockholder"
and collectively the "Non-Management Stockholders") (each of MDC, APT, the
Management Stockholders and the Non-Management Stockholders is hereinafter
referred to as a "Stockholder," it being understood and agreed that any holder
of Common Stock of the Company during the term of this Agreement shall become a
party to this Agreement and shall be referred to within the term "Stockholder").
W I T N E S S E T H :
WHEREAS, MDC, APT, CEA, the Clipper Entities, the Management
Stockholders and the Non-Management Stockholders own shares of Common Stock of
the Company; and
WHEREAS, the Stockholders each desire to grant to the others certain
rights in connection with the shares of Common Stock now or hereafter owned by
them (collectively, with any shares of Common Stock hereafter issued by the
Company during the term of this Agreement the "Shares") as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
ss. 1.1 Certain Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For purposes of
this definition, "control" (including, with correlative meanings, the
terms "controlling," "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
management or policies of such Person, whether through the ownership of
voting securities, by agreement or otherwise.
(b) "business day" shall mean any day except a Saturday, a Sunday or
other day on which commercial banks are required or authorized to close in
New York, New York or Atlanta, Georgia.
(c) "Call Shares" shall mean collectively (i) restricted shares of
Common Stock granted, or (ii) shares of Common Stock received upon the
exercise of options granted, to certain key employees of the Company (or
the Company's Subsidiaries) pursuant to any Company stock option or stock
award plan.
(d) "Clipper Entities" shall mean Clipper Capital Associates, L.P.
("Clipper") and certain Affiliates of Clipper party hereto.
(e) "Common Stock" shall mean the voting and non-voting shares of
common stock, par value $.01 per share, of the Company.
(f) "IPO" shall mean an initial public offering of the voting Common
Stock.
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(g) "New Securities" shall mean any common stock of the Company of
any class, or any preferred stock or other equity securities of the
Company, whether authorized now or in the future, and any rights, options
or warrants to purchase any such stock or securities, and securities
(including, without limitation, debt obligations) of any type whatsoever
that are, or may become, convertible into or exchangeable for any such
stock or securities, in each case issued after the date hereof.
(h) "Person" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization and
a government or other department or agency thereof.
(i) "Related Persons" shall mean with respect to (i) any MDC Entity,
(x) any partnership with the same controlling general partner as such MDC
Entity and (y) any of the partners of such MDC Entity which receive Shares
upon a distribution to any such partners by any such MDC Entity in
connection with a liquidation or other winding-up of such MDC Entity, (ii)
CEA or any Clipper Entity, (x) any partnership with the same controlling
general partner as CEA or such Clipper Entity, as the case may be, and (y)
any of the partners of CEA or such Clipper Entity, as the case may be,
which receives Shares upon a distribution to any such partners by CEA or
such Clipper Entity, as the case may be, in connection with a liquidation
or winding up of CEA or such Clipper Entity, as the case may be, and (iii)
any Stockholder which is a corporation, partnership or limited liability
company, any Affiliate of such Stockholder so long as such Affiliate is a
partnership, a corporation, a limited liability company or a trust.
(j) "Subsidiary" shall mean, with respect to any Person, any
corporation, association or other business entity of which more than 50%
of the total voting power of shares of capital stock or other equity
interests entitled (without regard to the occurrence of any contingency)
to vote in the election of directors or other managing authority thereof
is at the time owned or controlled, directly or indirectly, by such Person
and its Subsidiaries.
(k) "Vested Stock Options" shall mean vested stock options for the
Common Stock granted to certain key employees of the Company pursuant any
Company stock option plan.
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ARTICLE II
TRANSFER OF SHARES
ss. 2.1 Restrictions. (a) No Stockholder shall sell, assign, pledge,
or in any manner, transfer any of the Shares or any right or interest therein,
to any Person (each such action, a "Transfer") except as permitted by this
Agreement.
(b) From and after the date hereof, all stock certificates
representing Shares held by any of the Stockholders shall bear a legend which
shall state as follows:
The shares represented by this certificate are subject to certain
restrictions against transfer set forth in a Stockholders Agreement
dated as of September 21, 1995, as amended and restated on January
10, 1996 and on February 16, 1996. A copy of such Stockholders
Agreement has been filed in the registered office of the Company in
the State of Delaware, where the same may be inspected daily during
business hours.
(c) In addition to the legend required by Section 2.1(b) above, all
stock certificates representing Shares held by any of the Stockholders shall
bear a legend which shall state as follows:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"),
and such shares may not be offered, sold, pledged or otherwise
transferred except (1) pursuant to an exemption from, or in a
transaction not subject to, the registration requirements under the
Securities Act or (2) pursuant to an effective registration statement
under the Securities Act, in each case in accordance with any
applicable securities laws of any State of the United States.
(d) In addition to the legends required by Sections 2.1(b) and (c)
above, all stock certificates representing Call Shares shall bear a legend which
shall state as follows:
The shares represented by this certificate are also subject to the
Management Call as described in Section 2.5 of the Stockholders
Agreement referred to above.
Any Call Shares transferred by a Management Stockholder in a Permitted Transfer
described in Section 2.2(a)(i) or (ii) shall remain Call Shares of the
transferee and
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certificates representing such shares shall bear the legend required by this
Section 2.1(d).
(e) The Company agrees that it will not cause or permit the Transfer
of any Shares to be made on its books unless the Transfer is permitted by this
Agreement and has been made in accordance with the terms hereof.
ss. 2.2 Permitted Transfers. (a) Notwithstanding anything to the
contrary contained herein, a Stockholder may at any time effect any of the
following Transfers (each a "Permitted Transfer" and each transferee, a
"Permitted Transferee"):
(i) A Stockholder's Transfer of any or all Shares owned by such
Stockholder following such Stockholder's death by trust instrument, will
or intestacy to such Stockholder's legal representative, heir or legatee.
(ii) A Stockholder's Transfer of any or all Shares owned by such
Stockholder as a gift or gifts during such Stockholder's lifetime to such
Stockholder's spouse, children, grandchildren or a trust or other legal
entity for the benefit of any Stockholder or any of the foregoing,
provided that such Stockholder retains voting control of the Shares so
transferred.
(iii) A Stockholder's Transfer of any or all Shares owned by it to
its Related Person.
(iv) A Transfer by a Stockholder which is made pursuant to Section
2.3, 2.4, 2.5, 2.6 or 2.7 hereof.
(v) A Transfer by a Stockholder to the Company.
(vi) With respect to MDC, a Transfer by MDC to any Person, provided,
that immediately after such Transfer MDC collectively owns not less than a
majority of the outstanding shares of Common Stock of the Company.
(vii) With respect to APT, a Transfer by APT to any of its
beneficiaries.
(viii) With respect to APT, a Transfer by APT to the Company
pursuant to the Pledge Agreement dated the date hereof among APT and the
Company.
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(ix) With respect to Xxxxx X. Xxxxxxx ("Xxxxxxx"), a Transfer to
Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and Global Ventures, Inc., provided that
the aggregate amount of all such Transfers shall not exceed 16,400 Shares.
(b) In any such Transfer referred to above in Section 2.2(a) (other
than a public offering pursuant to Section 2.7 hereof in which event this
Agreement shall terminate in accordance with the provisions of Section 5.9
hereof), the Permitted Transferee shall receive and hold such Shares subject to
the provisions of this Agreement as if such Permitted Transferee were an
original signatory hereto and shall be deemed to be a party to this Agreement.
ss. 2.3 Sales by MDC Subject to Tag-Along Rights. (a) In the event
that MDC proposes to effect a Transfer (other than a Permitted Transfer
described in Sections 2.2(a)(iii) or (vi) above) of any of the Shares owned by
it (the "MDC Stock"), then MDC shall promptly give written notice (the "MDC
Notice") to the Company and the other Stockholders at least thirty days prior to
the closing of such Transfer. The MDC Notice shall describe in reasonable detail
the proposed Transfer including, without limitation, the name of, and the number
of shares of MDC Stock to be purchased by, the transferee, the purchase price of
each share of MDC Stock to be sold, any other significant terms of such sale and
the date such proposed sale is expected to be consummated, it being understood
that if such proposed Transfer by MDC is (i) in connection with an IPO or (ii)
in connection with another public offering pursuant to a registration statement
filed under Section 2.7 (in which case the piggyback rights provided for in
Section 2.7(a) shall apply), the subsequent provisions of this Section 2.3 shall
not apply except that if such proposed Transfer is in connection with an IPO the
subsequent provisions of this Section 2.3 shall apply to, and give rights to,
the other Stockholders; provided that if MDC is a selling stockholder in the IPO
solely by virtue of the fact that it is undertaking to provide the
over-allotment option in connection with such IPO, then the subsequent
provisions of this Section 2.3 shall apply to, and give rights to, all
Stockholders other than the Management Stockholders; and provided further,
however, that in connection with any such IPO, the Company shall use its best
efforts to cause the applicable Shares to be registered or qualified to the
extent required to permit the sale or other Transfer thereof as contemplated
pursuant to this Section 2.3.
(b) Each Stockholder shall have the right, exercisable upon
irrevocable written notice to MDC within fifteen days after receipt of the MDC
Notice, to participate in such sale of MDC Stock on the same terms and
conditions applicable to the MDC Transfer as set forth in the MDC Notice,
including, without limitation, the making of all representations, warranties,
indemnifications (including participating in any escrow arrangements) and
similar agreements (it being understood that each Stockholder's indemnification
obligation will be limited to its pro rata portion of the
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purchase price paid in connection with such sale), and to sell all or any
portion of the number of the Shares owned by it as determined in accordance with
the calculation set forth below. Each Stockholder other than MDC electing to
participate in the sale described in the MDC Notice (each a "Participant") shall
indicate in its notice of election to MDC the maximum number of its Shares it
desires to sell in such sale (which number may be in excess of the number of
Shares set forth in the MDC Notice). Each such Participant shall be entitled to
sell a "pro rata portion" of such maximum number. To the extent one or more of
the Stockholders exercise such right of participation in accordance with the
terms and conditions set forth in this Section 2.3, the number of shares of MDC
Stock that MDC may sell in the transaction shall be correspondingly reduced. For
purposes of this Section 2.3, "pro rata portion" shall mean for each Participant
a fraction the numerator of which is the number of Shares of MDC Stock proposed
to be sold in the MDC Notice and the denominator of which is the sum of (A) the
total number of Shares owned by MDC immediately prior to the sale proposed in
the MDC Notice and (B) the total number of Shares desired to be sold by all of
the Participants electing to participate in the sale. Not later than five days
prior to the date scheduled for such sale, MDC shall provide notice to each
Participant of the "pro rata portion" of Shares to be sold by such Participant
in such sale.
(c) Any Participant shall effect its participation in the sale by
delivering on the date scheduled for such sale to MDC for delivery to the
prospective transferee one or more certificates, in proper form for transfer,
which represent the number of Shares which such Participant is entitled to sell
in accordance with this Section 2.3. Such stock certificate or certificates that
any Participant delivers to MDC shall be delivered on such date to such
transferee in consummation of the sale of the Shares pursuant to the terms and
conditions specified in the MDC Notice, and MDC shall concurrently therewith
remit to each such Participant that portion of the sale proceeds to which such
Participant is entitled by reason of its participation in such sale. MDC's sale
of Shares in any sale proposed in an MDC Notice shall be effected on the terms
and conditions set forth in such MDC Notice.
(d) The exercise or non-exercise of the rights of the Stockholders
hereunder to participate in one or more sales of Shares made by MDC shall not
adversely affect their rights to participate in subsequent sales of Shares
subject to this Section 2.3.
(e) In no event shall MDC receive special consideration or a control
premium in connection with any sale contemplated by this Section 2.3.
(f) Notwithstanding any of the provisions of this Section 2.3,
holders of Class B Non-Voting Common Shares of the Company shall not have any of
the rights set forth in this Section 2.3 if the exercise of such rights violates
any applicable
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laws or regulations, including, without limitation, Section 4 of the Bank
Holding Company Act of 1956, as amended and any regulations or orders issued by
the Board of Governors of the Federal Reserve System thereunder.
ss. 2.4 Grant to MDC of Bring-Along Rights. (a) Each time the
Stockholders of the Company meet, or act by written consent in lieu of meeting,
for the purpose of approving a "Sale of the Business" (as such term is
hereinafter defined), each Stockholder agrees to vote all of its Shares, and to
sell all of its Shares, as directed by MDC. In order to effect the foregoing
covenant, each Stockholder hereby grants to MDC with respect to all of such
Stockholder's Shares an irrevocable proxy (which is deemed to be coupled with an
interest) for the term of this Agreement with respect to any Stockholder vote or
action by written consent to effect the Sale of the Business. As used herein,
"Sale of the Business" shall mean any transaction or series of transactions
(whether structured as a stock sale, merger, consolidation, reorganization,
asset sale or otherwise) negotiated on an arm's-length basis, which results in
the sale or transfer of all or substantially all of the assets or shares of
capital stock of the Company to an unaffiliated bona fide third party in which
all consideration payable to holders of the Common Stock is distributed pro rata
pursuant to stock ownership.
(b) In furtherance of its covenants in Section 2.4(a), each
Stockholder hereby agrees to cooperate fully with MDC and the purchaser in any
such Sale of the Business and, to execute and deliver all documents (including
purchase agreements) and instruments as MDC and the purchaser request to effect
such Sale of the Business, including, without limitation, the making of all
representations, warranties and indemnifications (including participating in any
escrow arrangements) and similar arrangements (it being understood that each
Stockholder's indemnification obligation will be limited to its pro rata portion
of the purchase price paid in connection with such Sale of the Business), but
excluding (i) representations, warranties and indemnifications to be made by
each Stockholder in its respective individual capacity (other than
representations, warranties and indemnifications relating to existence and good
standing, ownership of, and title to, the Shares, authorization, validity and
enforceability of agreements and no conflicts with agreements) (ii) employment
agreements and (iii) covenants not to compete (the determination of whether or
not to enter into any such agreements being in the sole and absolute discretion
of each Stockholder). MDC agrees that upon such Sale of the Business each
Stockholder will receive its pro rata share of the consideration paid by the
purchaser determined on the basis of such Stockholder's Share ownership.
(c) In no event shall MDC receive special consideration or a control
premium in connection with a sale contemplated by this Section 2.4.
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ss. 2.5 Call Upon Termination of Management Stockholder's
Employment. (a) Notwithstanding any other provision of this Agreement to the
contrary, upon the death, disability, retirement or termination of employment
(each a "Call Event") of any Management Stockholder employed immediately prior
to such Call Event by the Company or any of the Company's Subsidiaries, the
Company shall, on the terms and subject to the conditions set forth in this
Section 2.5, have the right (the "Management Call"), at the option of the
Company, to purchase all but not less than all of the Call Shares and Vested
Stock Options held by such Management Stockholder, and any Permitted Transferee
of Call Shares or Vested Stock Options of such Management Stockholder pursuant
to Section 2.2(a)(i) or (ii), by delivering written notice to such Management
Stockholder or his or her Permitted Transferees, within 60 days after the
occurrence of the Call Event, at the prices set forth below.
(b) If the employment of a Management Stockholder is terminated upon
death, disability, termination or resignation after a date which is five years
from the date hereof or voluntary retirement from full-time employment with the
Company or its Subsidiaries at age 59-1/2 or greater after a minimum of five
years continuous full-time employment with the Company or its Subsidiaries since
the initial date of employment, then the offering price for the Call Shares or
Vested Stock Options offered to the Company pursuant to this Section 2.5 shall
be equal to the fair market value of such Shares or Vested Stock Options at such
time as determined in good faith by the Board of Directors of the Company
(without discount for lack of marketability or minority interest).
(c) If the employment of a Management Stockholder is terminated (i)
by the Company or any Subsidiary of the Company without "cause" (as hereinafter
defined) or (ii) as a result of the resignation of such Management Stockholder
either (A) with the consent of the Company or (B) for "good reason" (as
hereinafter defined), in the case of both clauses (i) and (ii), prior to a date
which is five years from the date hereof then the offering price for the Call
Shares and Vested Stock Options offered to the Company pursuant to this Section
2.5 shall be an amount equal to the greater of (i) the purchase price originally
paid for such Shares and Vested Stock Options by such Management Stockholder and
(ii) the Book Value of such Shares and Vested Stock Options. For purposes of
this Section 2.5, "Book Value" per Share shall mean an amount equal to $12.50
per share of the Company plus or minus, as the case may be, the positive or
negative changes in the stockholders' equity per share of Common Stock of the
Company (calculated in accordance with generally accepted accounting principles,
consistently applied) from the date of the consummation of this Agreement until
the last day of the month immediately preceding the month in which the Call
Event occurs. "Book Value" per Vested Stock Option shall mean the "Book Value"
per share (as calculated above) less the exercise price in respect of such
Vested Stock Option. For purposes of this Section 2.5 "good reason" shall mean
the occurrence of
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any of the following events, except for the occurrence of such an event in
connection with the termination of a Management Stockholder's employment by the
Company or any of its Subsidiaries for cause: (i) a significant reduction in the
authorities, duties or responsibilities of such Management Stockholder; or (ii)
a failure to pay base salary after the due date thereof provided that the
Company shall have received written notice of such failure to pay from such
Management Stockholder and shall not have paid (or caused to be paid) such base
salary amount within 20 days of such notice, a reduction in base salary, the
reduction or discontinuance of any incentive compensation plan or the taking of
any action which materially adversely affects such Management Stockholder's
participation in or benefits under any fringe benefit provided to such
Management Stockholder; provided that the actions referred to in clause (ii)
above (other than with respect to a failure to pay, or reduction in, base
salary) shall not constitute "good reason" events if such actions were taken by
the Company or its Subsidiaries as part of an overall plan by the Company or its
Subsidiaries and made applicable to the same extent to all executives of the
Company or its Subsidiaries.
(d) If the employment of a Management Stockholder is terminated by
the Company or any Subsidiary "for cause" or as a result of the resignation of
such Management Stockholder without the consent of the Company, other than for
"good reason" as defined in Section 2.5(c) above, in each case, prior to a date
which is five years from the date hereof, then the offering price for the Call
Shares or Vested Stock Options held by such Management Stockholder offered to
the Company pursuant to this Section 2.5 shall be an amount equal to the lesser
of (i) the purchase price originally paid for such Shares and Vested Stock
Options by such Management Stockholder and (ii) the Book Value (as previously
defined) of such Shares and Vested Stock Options. For purposes of this Section
2.5, a Stockholder shall be deemed to have been terminated "for cause" if his
employment was terminated for: (i) embezzlement, theft or other misappropriation
of any property of the Company or any Subsidiary, (ii) gross or willful
misconduct resulting in substantial loss to the Company or any Subsidiary or
substantial damage to the reputation of the Company or any Subsidiary, (iii) any
act involving moral turpitude which results in a conviction for a felony
involving moral turpitude, fraud or misrepresentation, (iv) gross neglect of his
assigned duties to the Company or any Subsidiary, (v) gross breach of his
fiduciary obligations to the Company or any Subsidiary, (vi) a breach of his
covenant not to compete with the Company or its Subsidiaries, or (vii) any
chemical dependence which materially affects the performance of his duties and
responsibilities to the Company or any Subsidiary; provided that in the case of
the misconduct set forth in clauses (iv) and (vii) above, such misconduct shall
continue for a period of 30 days following written notice thereof by the Company
to the Management Stockholder.
(e) If the Company shall elect to exercise the Management Call in
accordance with this Section 2.5, the closing of the purchase by the Company
shall take
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place no later than 45 days after the exercise of the Management Call, which
time in the case of the death of a Management Stockholder may be extended to
provide for probate of such Stockholder's estate. On the date scheduled for such
closing, the price for the Shares subject to the Management Call, determined in
accordance with this Section 2.5, shall be paid in full to the Management
Stockholder holding such Shares (including, if applicable, such Shares held by
any Permitted Transferee of such Management Stockholder pursuant to Section
2.2(a)(i) or (ii)) by the Company against delivery of a certificate or
certificates, as the case may be, representing the purchased Shares in proper
form for transfer. In connection with such closing, such Management Stockholder
shall warrant to the Company good and marketable title to the purchased Shares,
free and clear of all claims, liens, charges, encumbrances and security
interests of any nature whatsoever except those under this Agreement.
ss. 2.6 Grant of Preemptive Rights to the other Stockholders Upon
Sale to MDC. The Company hereby grants to the other Stockholders preemptive
rights to purchase a portion of New Securities that the Company may from time to
time after the date hereof propose to issue to MDC and its Affiliates at the
same price (the "Preemptive Price") offered to MDC and its Affiliates (which
price shall be a per share price equal to the fair market value of the New
Securities as determined in good faith by the Board of Directors of the
Company); provided that it is understood that if the New Securities (or any
portion thereof) is non-voting common stock of the Company then such preemptive
right, in the case of all Stockholders other than CEA and the Clipper Entities,
shall be the right to purchase voting common stock of the Company rather than
non-voting common stock of the Company; and provided further that regardless of
whether the New Securities (or any portion thereof) is voting or non-voting
common stock of the Company then the preemptive right, in the case of CEA and
the Clipper Entities, shall be the right to purchase non-voting common stock of
the Company. In the event (and on each occasion) that the Company shall decide
to undertake an issuance of New Securities to MDC and/or its Affiliates, the
Company will give all Stockholders written notice (a "Preemptive Notice") of the
Company's decision, describing the type of New Securities, the Preemptive Price,
and the general terms upon which the Company has decided to issue the New
Securities (including, without limitation, the expected timing of such issuance
which will in no event exceed 60 days). Each of the other Stockholders shall
have 10 business days from the date on which it receives the Preemptive Notice
to agree to purchase its pro rata portion of such New Securities for the
Preemptive Price and upon the general terms specified in the Preemptive Notice
by giving written notice to the Company and stating therein the quantity of New
Securities to be purchased by such Stockholder. If, in connection with such a
proposed issuance of New Securities, any such Stockholders shall for any reason
fail or refuse to give such written notice to the Company within such 10-day
period, such Stockholder shall, for all purposes of this Section 2.6, be deemed
to have refused (in that particular instance only) to purchase any of such New
Securities and to have
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waived (in that particular instance only) all of its rights under this Section
2.6 to purchase any of such New Securities.
ss. 2.7 Registration Rights. (a) If the Company intends (other than
in connection with an IPO) to register Shares on Form X-0, Xxxx X-0 or Form S-3
or any corresponding form applicable at the time under the Securities Act as
then in effect (or any similar statute then in effect), the Company will give
written notice to each Stockholder of its intention to do so, at least 15 days
prior to the time of the filing of any registration statement or qualification
papers, and at the written request of any Stockholder given within 10 days after
receipt of any such notice (which request shall specify the number of Shares
intended to be sold or disposed of by such Stockholder and shall describe the
nature of any proposed sale or other disposition thereof which may include a
distribution over a reasonable period of time), the Company will use its best
efforts to cause such Shares to be registered or qualified to the extent
required (in the opinion of the Company's counsel) to permit the sale or other
disposition thereof (in accordance with the methods described by such
Stockholder) (such right of each Stockholder to participate in the proposed
offering, a "piggy-back right"). The number of Shares that any Stockholder
intends to sell shall be subject to underwriters' cutbacks resulting from the
underwriters' conclusion that the inclusion of all of the Shares requested to be
included in the proposed offering would materially adversely affect the
distribution of Shares in such offering or the market price of the Company's
Common Stock if such Common Stock is publicly traded. Such underwriters'
cutbacks shall be made on a pro rata basis by multiplying the number of Shares
that each Stockholder desires to sell in the proposed offering by a fraction the
numerator of which shall be the number of Shares that the underwriters deem
appropriate to sell in the proposed offering and the denominator of which shall
be the total number of Shares that all of the Stockholders initially desire to
sell in the proposed offering.
(b) All out-of-pocket expenses, disbursements and fees in connection
with any action to be taken under this Section 2.7 shall be borne by the
Company, including the reasonable fees and expenses of one counsel for all
participating Stockholders except in connection with a registration on Form S-3
(or such corresponding form applicable at the time under the Securities Act) in
which case the fees and expenses of counsel, if any, for participating
Stockholders shall be for each participating Stockholder's own account, provided
that the foregoing expenses shall in no event include the underwriters' discount
in connection with an offering.
(c) In the event of any registration under the provisions of this
Section 2.7, the Company, to the extent permitted by law, will indemnify any
Stockholder participating in such registration, its respective officers,
directors and trustees, if any, and each Person, if any, who controls such
Stockholder within the meaning of Section 15 of the Securities Act, against all
losses, claims, damages and lia-
-12-
bilities caused by any untrue statement of a material fact contained in the
registration statement or prospectus (and as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading and will reimburse
such Stockholder, its officers, directors and trustees and any Person, if any,
who controls such Stockholder within the meaning of Section 15 of the Securities
Act, against any legal or other expenses reasonably incurred by such
Stockholder, officer, director or Person in connection with investigating or
defending any such losses, claims, damages and liabilities, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission contained in information furnished in writing to the Company by such
Stockholder participating in such registration or by underwriters expressly for
use therein. The obligation of the Company under this Section 2.7 to register
securities for any of the Stockholders shall be subject to the condition that
each such Stockholder and the underwriters involved in the offering shall
furnish to the Company in writing such information as shall be reasonably
requested by the Company for use in connection with the preparation of any such
registration statement or prospectus and, to the extent permitted by law, shall
indemnify the Company, its directors and officers, any other underwriter, the
other Stockholders participating in such registration and each Person, if any,
who controls the Company, any other underwriter or such other Stockholders,
within the meaning of Section 15 of the Securities Act, against all losses,
claims, damages and liabilities caused by any untrue statement or omission
contained in information so furnished in writing to the Company by such
Stockholder or such underwriter expressly for use therein.
(d) If the indemnification provided for in this Section 2.7 from the
indemnifying party is unavailable to any indemnified party hereunder in respect
of any losses, claims, damages or liabilities referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 2.7 as a result of the losses, claims,
damages and liabilities referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
-13-
any investigation or proceeding. The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 2.7(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to herein.
(e) As expeditiously as possible after the effectiveness of any
registration statement pursuant to this Section 2.7 and prior to such date as
shall be certified to the Company as the date upon which the Transfer
contemplated by such registration statement will be effected by any
participating Stockholder, the Company will deliver in exchange for certificates
representing Shares so registered bearing the legends set forth in Section 2.1,
certificates therefor not bearing such legends as shall be required to effect
such Transfer. In the event that the proposed Transfer is not made as
contemplated by any such participating Stockholder, by acceptance thereof such
Stockholder shall be deemed to have agreed that it will deliver such
certificates not bearing such legends to the Company in exchange for new
certificates bearing the legends set forth in Section 2.1 if the Company shall
request and the Company agrees that it will make such exchange.
(f) The registration rights provided in this Section 2.7 shall
terminate after an IPO as to any Stockholder which can immediately sell all of
its Shares in a single sale pursuant to Rule 144 under the Securities Act.
(g) Each of the Stockholders agrees that in connection with any
public offering (including an IPO), such Stockholder will not, without the prior
written consent of the Company, directly or indirectly, offer to sell, sell,
contract to sell (including, without limitation, any short sale), grant any
option for the sale of, acquire any option to dispose of, or otherwise dispose
of any Shares for a period of 180 days following the date of the consummation of
such public offering.
ARTICLE III
BOARD OF DIRECTORS OF THE COMPANY
ss. 3.1 Board of Directors. (a) Each Stockholder agrees to vote all
of the voting Shares held by such Stockholder so as to elect and maintain a
Board of Directors of the Company (the "Board") composed of the following: (i)
Xxxxx X. Xxxxxx, or if he ceases to be Chief Executive Officer of the Company,
the successor Chief Executive Officer of the Company, (ii) one person designated
by XxXxxx De Leeuw & Co. III, L.P., (iii) two persons designated by XxXxxx De
Leeuw & Co. Offshore (Europe) III, L.P., (iv) one person designated by XxXxxx De
Leeuw & Co. III Offshore (Asia), L.P., (v) two persons designated by APT (one
person if APT shall
-14-
hold less than 20% of the outstanding Common Stock at any time), (vi) Xxxxxxx,
but only so long as Xxxxxxx (together with any Permitted Transferees of Xxxxxxx
pursuant to Section 2.2(a) (ii) of this Agreement) shall continue to own at
least 280,000 shares of Stock, (vii) within one year of the date of this
Agreement, two persons who shall be "independent directors" designated by XxXxxx
De Leeuw & Co. III, L.P. in consultation with the Chief Executive Officer of the
Company and APT and (viii) within one year of the date of this Agreement, one
person who shall be an "independent director" designated by XxXxxx De Leeuw &
Co. III Offshore (Asia), L.P. in consultation with the Chief Executive Officer
of the Company and APT. In addition, notwithstanding the above, each Stockholder
agrees to vote all of the voting Shares held by such Stockholder so as to elect
at any time requested to do so the following persons to the Board: (i) one
person designated by XxXxxx De Leeuw & Co. III, L.P., (ii) two persons
designated by XxXxxx De Leeuw & Co. Offshore (Europe) III, L.P. and (iii) one
person designated by XxXxxx De Leeuw & Co. III Offshore (Asia), L.P.
(b) In the event that any director designated by any Stockholder for
any reason ceases to serve as a director during his term of office, the
resulting vacancy on the Board shall be filled by a director designated by such
Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY AND THE STOCKHOLDERS
ss. 4.1 Representations and Warranties of the Stockholders. (a) Each
Stockholder represents and warrants, severally and not jointly, that: (i) such
Stockholder is acquiring, or has acquired, the shares of Common Stock for
investment for such Stockholder's own account and not with a view to, or for the
resale in connection with, the distribution or other disposition thereof; (ii)
such Stockholder will not, during the term of this Agreement, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any shares of Common Stock except in accordance with this Agreement;
(iii) such Stockholder (A) has either (1) preexisting personal or business
relationships with the Company, or any of its respective officers, directors or
any of its respective Affiliates or (2) such knowledge and experience in
financial and business matters such that such Stockholder is capable of
evaluating the merits and risks relating to the purchase of shares of Common
Stock under this Agreement, or such Stockholder has been advised by a
representative possessing such knowledge and experience who is unaffiliated with
or who is not compensated, directly or indirectly, by the Company or any of its
Affiliates, or (B) is a Trust, the beneficiaries of which are Persons meeting
the requirements of (1) and/or
-15-
(2) of clause (iii)(A) above; (iv) such Stockholder has been given an
opportunity which such Stockholder deems adequate to obtain information and
documents relating to the Company and to ask questions of and receive answers
from representatives of the Company concerning such Stockholder's investment in
the Common Stock of the Company; (v) such Stockholder's financial condition is
such that such Stockholder can afford to bear the economic risk of holding the
Common Stock for an indefinite period of time; such Stockholder has adequate
means of providing for such Stockholder's current needs and contingencies and
has no need for such Stockholder's investment in the Common Stock to be liquid;
and (vi) such Stockholder can afford to suffer a complete loss of such
Stockholder's investment in the Common Stock.
(b) Each Stockholder further acknowledges that such Stockholder has
been advised by the Company that: (i) the offer and sale of the Common Stock has
not been registered under the Securities Act of 1933 (the "1933 Act"), but is
intended to be exempt from registration pursuant to Section 4(2) of the 1933 Act
and the rules promulgated thereunder by the Securities and Exchange Commission,
and that the Shares cannot be sold, pledged, assigned or otherwise disposed of
unless the same is subsequently registered under the 1933 Act or an exemption
from such registration is available; (ii) it is anticipated that there will not
be any public market for the Shares in the foreseeable future; (iii) a
restrictive legend in the form set forth in Section 2.1 shall be placed on the
certificates representing the Shares; and (iv) a notation shall be made in the
appropriate records of the Company indicating that the Shares are subject to
restrictions on transfer and if the Company should at some time in the future
engage the services of a stock transfer agent, appropriate stop transfer
restrictions will be issued to such transfer agent with respect to the Shares.
(c) Each Stockholder further represents and warrants that (i) such
Stockholder has full right, power and authority to execute, deliver and perform
this Agreement; (ii) all actions necessary or required to be taken by or on the
part of such Stockholder to execute, deliver and perform this Agreement and to
consummate the transactions contemplated by this Agreement have been duly
authorized and approved by all necessary or required action of such Stockholder
and have been validly taken; and (iii) this Agreement has been duly executed and
delivered by such Stockholder and is a valid and binding agreement of such
Stockholder enforceable in accordance with its terms, except to the extent that
its enforceability may be subject to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity.
ss. 4.2 Representations and Warranties of the Company. The Company
represents and warrants that (i) it has the corporate power and authority to
execute, deliver and perform this Agreement; (ii) all actions necessary or
required to be taken by or on the part of the Company to execute, deliver and
perform this Agreement and
-16-
to consummate the transactions contemplated by this Agreement have been duly
authorized and approved by all necessary or required action of the Company and
have been validly taken; and (iii) this Agreement has been duly executed and
delivered by the Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except to the extent that its
enforceability may be subject to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity.
ARTICLE V
MISCELLANEOUS
ss. 5.1 Entire Agreement. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior arrangements or understandings (whether written or
oral) with respect thereto.
ss. 5.2 Captions. The Article and Section captions used herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
ss. 5.3 Counterparts. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by the parties hereto and each
such executed counterpart shall be deemed to be an original instrument.
ss. 5.4 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered by personal delivery, overnight courier, telecopier or registered or
certified mail, return-receipt requested and postage prepaid addressed as
follows:
If to the Company, to:
OSI Holdings Corp.
c/x XxXxxx De Leeuw & Co.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000 or (000) 000-0000
-17-
with copies to White & Case
if to White & Case, to:
White & Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
if to APT-1, to:
c/o HBR Capital
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx III
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to Xxxxxxxx Xxxxxxx LLP
if to APT-2, to:
c/o HBR Capital
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to Xxxxxxxx Xxxxxxx LLP
-18-
if to Xxxxxxxx Xxxxxxx LLP, to:
Xxxxxxxx Xxxxxxx
Nationsbank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
if to any of the Management Stockholders or the Non-Management
Stockholders, to the addresses set forth opposite each of their
names on Schedule A attached hereto,
or to such other address as any such party hereto may, from time to time,
designate in writing to all other parties hereto, and any such communication
shall be deemed to be given, made or served as of the date so delivered or, in
the case of any communication delivered by mail, as of the date so received.
ss. 5.5 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Company, the Stockholders and their respective
heirs, devisees, legal representatives, successors, permitted assigns and other
permitted transferees. The rights of a Stockholder under this Agreement may not
be assigned or otherwise conveyed by any Stockholder except in connection with a
Transfer of Shares which is in compliance with this Agreement.
ss. 5.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO SUCH STATE'S CHOICE OF LAW PROVISIONS.
ss. 5.7 Submission to Jurisdiction. (a) Each of the parties hereto
hereby irrevocably acknowledges and consents that any legal action or proceeding
brought with respect to any of the obligations arising under or relating to this
Agreement may be brought in the courts of the State of New York or in the United
States District Court for the Southern District of New York, as the party
bringing such action or proceeding may elect, and each of the parties hereto
hereby irrevocably submits to and accepts with regard to any such action or
proceeding, for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Subject to Section
5.7(b), the foregoing shall not limit the rights of any party to serve process
in any other manner permitted by law. The foregoing consents to jurisdiction
shall not constitute general consents to service of process in the State of New
York for any
-19-
purpose except as provided above and shall not be deemed to confer rights on any
Person other than the respective parties to this Agreement.
(b) The parties hereto agree that any judgment obtained by any party
hereto or its successors or assigns in any action, suit or proceeding referred
to above may, in the discretion of such party (or its successors or assigns), be
enforced in any jurisdiction, to the extent permitted by applicable law.
(c) The parties hereto agree that the remedy at law for any breach
of this Agreement may be inadequate and that should any dispute arise concerning
the sale or disposition of any Shares or the voting thereof or any other similar
matter hereunder, this Agreement shall be enforceable in a court of equity by an
injunction or a decree of specific performance. Such remedies shall, however, be
cumulative and nonexclusive, and shall be in addition to any other remedies
which the parties hereto may have.
(d) The parties hereto agree that the prevailing party or parties,
as the case may be, in any action, suit, arbitration or other proceeding arising
out of or with respect to this Agreement or the transactions contemplated hereby
shall be entitled to reimbursement of all costs of litigation, including
reasonable attorneys' fees, from the non-prevailing party. For purposes of this
Section 5.7(e), each of the "prevailing party" and the "non-prevailing party" in
any action, suit, arbitration or other proceeding shall be the party designated
as such by the court, arbitrator or other appropriate official presiding over
such action, suit, arbitration or other proceeding, such determination to be
made as a part of the judgment rendered thereby.
ss. 5.8 Benefits Only to Parties. Nothing expressed by or mentioned
in this Agreement is intended or shall be construed to give any Person, other
than the parties hereto and their respective successors or permitted assigns,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto and their respective successors and permitted
assigns, and for the benefit of no other Person.
ss. 5.9 Termination. This Agreement shall terminate upon the
happening of any one of the following events:
(a) the voluntary or involuntary dissolution of the Company;
(b) the consummation of an IPO, except that (i) the rights of the
Stockholders under Section 2.7 shall survive such termination and (ii) the
rights
-20-
of the Stockholders under Section 2.3 shall survive such termination for a
period of two years; and
(c) the tenth anniversary of the date of this Agreement, unless this
Agreement has been renewed or extended by a written instrument on or prior
to such date;
provided, however, the provisions of Section 4.1 (other than clause (a)(ii)
thereof) shall survive any termination of this Agreement.
ss. 5.10 Publicity. Except as otherwise required by applicable laws
or regulations, none of the parties hereto shall issue or cause to be issued any
press release or make or cause to be made any other public statement in each
case relating to or connected with or arising out of this Agreement or the
matters contained herein, without obtaining the prior approval of MDC and the
Company to the contents and the manner of presentation and publication thereof.
ss. 5.11 Confidentiality. Each of the parties hereto hereby agrees
that throughout the term of this Agreement it shall keep (and shall cause its
directors, officers, trustees, employees, representatives and outside advisors
and its affiliates to keep) all non-public information relating to the Company
(including any such information received prior to the date hereof) confidential
except information which (i) becomes known to such Stockholder from a source,
other than the Company, its directors, officers, employees, representatives or
outside advisors, which source is not obligated to the Company to keep such
information confidential or (ii) becomes generally available to the public
through no breach of this Agreement by any party hereto. Each of the parties
hereto agrees that such non-public information (a) shall be communicated only to
those of its trustees, directors, officers, employees, representatives, outside
advisors and affiliates who need to know such non-public information and (b)
will not be used by such party or its trustees, directors, officers, employees,
representatives, outside advisors or affiliates either to compete with the
Company or to conduct itself in a manner inconsistent with the antitrust laws of
the United States or any state. Notwithstanding the foregoing, a party hereto
may disclose non-public information if required to do so by a court of competent
jurisdiction or by any governmental agency; provided, however, that prompt
notice of such required disclosure be given to the Company prior to the making
of such disclosure so that the Company may seek a protective order or other
appropriate remedy. In the event that such protective order or other remedy is
not obtained, the party hereto required to disclose the non-public information
will disclose only that portion which such party is advised by opinion of
counsel is legally required to be disclosed and will request that confidential
treatment be accorded such portion of the non-public information.
-21-
ss. 5.12 Fees; Expenses. The parties hereto acknowledge that MDC
Management Company III, L.P. (or its successors or assigns) shall receive from
the Company, on behalf of the Company and its Subsidiaries, an ongoing
management fee (not to exceed $300,000 per year) as set forth in the Advisory
Services Agreement, dated as of September 21, 1995, between the Company (on
behalf of the Company and its Subsidiaries) and MDC Management Company III,
L.P., in each case plus reimbursement for its out-of-pocket expenses. The
Company shall reimburse each of the respective board representatives who are not
employees of the Company for their travel and out-of-pocket expenses incurred in
connection with their serving on the Company's board of directors.
ss. 5.13 Amendments; Waivers. No provision of this Agreement may be
amended, modified or waived without approval of 80% of the holders of the Common
Stock; provided that no such amendment or waiver of a provision of this
Agreement which adversely affects the rights of APT, Rosvall, Heller, CEA, any
Clipper Entity or any of the Management Stockholders in a manner that does not
adversely affect all other Stockholders equally may be made without such
Stockholders' consent; provided that each of the Management Stockholders and APT
shall be considered as a group with the determination by the holders of a
majority of the outstanding Shares held by (i) the Management Stockholders to be
binding on all Management Stockholders and (ii) APT to be binding on each of
APT-1 and APT-2.
-22-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
OSI HOLDINGS CORP.
By /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Secretary & Treasurer
XxXXXX De LEEUW & CO. III, L.P.
By MDC Management Company III,
L.P., its general partner
By /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: General Partner
XxXXXX De LEEUW & CO. OFFSHORE
(EUROPE) III, L.P.
By MDC Management Company IIIE,
L.P., its general partner
By /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: General Partner
XxXXXX De LEEUW & CO. III OFFSHORE
(ASIA), L.P.
By MDC Management Company IIIA,
L.P., its general partner
By /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: General Partner
GAMMA FUND, LLC
By /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Member
RAINBOW TRUST ONE
By /s/ Xxxxx X. Xxxxx, III
---------------------------
Name: Xxxxx X. Xxxxx, III
Title: Trustee
RAINBOW TRUST TWO
By /s/ Xxxxx X. Xxxxx, III
---------------------------
Name: Xxxxx X. Xxxxx
Title: Trustee
THE MANAGEMENT STOCKHOLDERS
/s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
THE NON-MANAGEMENT STOCKHOLDERS
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxx Xxxx
---------------------------
Name: Xxxxxx Xxxx
Title: Assistant Vice President
/s/ X. Xxxx Xxxxxx
--------------------------------
Name: X. Xxxx Xxxxxx
GLOBAL VENTURES, INC.
By: /s/ X.X. Xxxxxxx
---------------------------
Name: X.X. Xxxxxxx
Title: President
CHEMICAL EQUITY ASSOCIATES, L.P.
By: CHEMICAL VENTURE PARTNERS,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
CLIPPER CAPITAL ASSOCIATES, L.P.
By: CLIPPER CAPITAL ASSOCIATES, INC.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
CLIPPER/MERCHANT PARTNERS, L.P.
By: CLIPPER CAPITAL ASSOCIATES, L.P.,
its General Partner
By: CLIPPER CAPITAL ASSOCIATES, INC.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
CLIPPER/MERBAN, L.P.
By: CLIPPER CAPITAL ASSOCIATES, L.P.,
its General Partner
By: CLIPPER CAPITAL ASSOCIATES, INC.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
CLIPPER EQUITY PARTNERS I, L.P.
By: CLIPPER CAPITAL ASSOCIATES, L.P.,
its General Partner
By: CLIPPER CAPITAL ASSOCIATES, INC.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-fact
CLIPPER/EUROPEAN RE, L.P.
By: CLIPPER CAPITAL ASSOCIATES, L.P.,
its General Partner
By: CLIPPER CAPITAL ASSOCIATES, INC.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-fact
CS FIRST BOSTON MERCHANT
INVESTMENTS 1995/96, L.P.
By: MERCHANT CAPITAL, INC.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Attorney-in-Fact
SCHEDULE A
MANAGEMENT AND NON-MANAGEMENT STOCKHOLDERS
Management Stockholders
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Address for Management Stockholders
Xxxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxx Xxxxxxxx
c/o A.M. Xxxxxx & Associates, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
X.X. Xxx 00000
Xxxxxxxxx, XX 00000
Non-Management Stockholders
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxx Financial, Inc.
X. Xxxx Xxxxxx
Global Ventures, Inc.
Chemical Equity Associates, L.P.
Clipper Capital Associates, L.P.
Clipper/Merchant Partners, L.P.
Clipper/Merban, L.P.
Clipper Equity Partners I, L.P.
SCHEDULE A
Page 2
Clipper/European RE, L.P.
CS First Boston Merchant
Investments 1995/96, L.P.
Address for Non-Management Stockholders
Xxxxx X. Xxxxxxx
00000 00xx Xxx. X.X.
Xxxxxxxx, XX 00000
Xxxx X. Xxxxxx
c/o A.M. Xxxxxx & Associates, Inc.
0000 Xxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
X. Xxxx Xxxxxx
000 Xxxxxxxxxx Xx.
Xxxx Xxxx, XX 00000
Global Venture, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: X.X. Xxxxxxx
Chemical Equity Associates, L.P.
c/o Chemical Venture Partners
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Any Clipper Entity
c/o Clipper Capital Associates, L.P.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
ACKNOWLEDGEMENT
The undersigned, Xxxxx Xxxxxx, hereby acknowledges receipt of the
Amended and Restated Stockholders Agreement (the "Stockholders Agreement"),
dated as of February 16, 1996, by and among OSI Holdings Corp. and various
stockholders of OSI Holdings Corp. attached hereto and hereby agrees to be bound
by all of the terms and provisions of the Stockholders Agreement as a Management
Stockholder (as such term is defined in the Stockholders Agreement).
IN WITNESS WHEREOF, the undersigned has executed this
acknowledgement as of March 19, 1996.
/s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx
ACKNOWLEDGEMENT
The undersigned, Xxxxxxx X. Xxxxxxx, hereby acknowledges receipt of
the Amended and Restated Stockholders Agreement (the "Stockholders Agreement"),
dated as of February 16, 1996, by and among OSI Holdings Corp. and various
stockholders of OSI Holdings Corp. attached hereto and hereby agrees to be bound
by all of the terms and provisions of the Stockholders Agreement as a Management
Stockholder (as such term is defined in the Stockholders Agreement).
IN WITNESS WHEREOF, the undersigned has executed this
acknowledgement as of February 16, 1996.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
ACKNOWLEDGEMENT
The undersigned, Xxxxxx Xxxx, hereby acknowledges receipt of the
Amended and Restated Stockholders Agreement (the "Stockholders Agreement"),
dated as of February 16, 1996, by and among OSI Holdings Corp. and various
stockholders of OSI Holdings Corp. attached hereto and hereby agrees to be bound
by all of the terms and provisions of the Stockholders Agreement as a Management
Stockholder (as such term is defined in the Stockholders Agreement).
IN WITNESS WHEREOF, the undersigned has executed this
acknowledgement as of March 19, 1996.
/s/ Xxxxxx Xxxx
---------------------------
Xxxxxx Xxxx
ACKNOWLEDGEMENT
MLQ Investors, L.P. ("MLQ") hereby acknowledges receipt of the
Amended and Restated Stockholders Agreement (the "Stockholders Agreement"),
dated as of February 16, 1996, by and among OSI Holdings Corp. and various
stockholders of OSI Holdings Corp. attached hereto and hereby agrees to be bound
by all of the terms and provisions of the Stockholders Agreement as a
Non-Management Stockholder (as such term is defined in the Stockholders
Agreement).
IN WITNESS WHEREOF, MLQ has caused this acknowledgement to be
executed by an officer thereunto duly authorized, as of May 17, 1996.
MLQ INVESTORS, L.P.
By: MLQ Investors, Inc., its
general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Acknowledged and Agreed:
OSI HOLDINGS CORP.
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XxXXXX De LEEUW & CO. III, L.P.
By MDC Management Company III,
L.P., its general partner
By: /s/ Xxxxx X. Xxxx
---------------------------
Title: General Partner
XxXXXX De LEEUW & CO. OFFSHORE
(EUROPE) III, L.P.
By MDC Management Company IIIE,
L.P., its general partner
By: /s/ Xxxxx X. Xxxx
---------------------------
Title: General Partner
XxXXXX De LEEUW & CO. III
(ASIA), L.P.
By MDC Management Company IIIA,
L.P., its general partner
By: /s/ Xxxxx X. Xxxx
---------------------------
Title: General Partner
GAMMA FUND, LLC
By: /s/ Xxxxx X. Xxxx
---------------------------
Title: Member
