EXHIBIT 10.1
SECURITIES PURCHASE AND HOLDERS AGREEMENT
SECURITIES PURCHASE AND HOLDERS AGREEMENT, dated March 17, 2000 (the
"Agreement"), by and among FABRISTEEL HOLDINGS, INC., a Delaware corporation
(the "Company"), CITICORP VENTURE CAPITAL, LTD., a New York corporation ("CVC"),
the individuals and trusts listed as "Continuing Investors" on Schedule I hereto
(collectively, the "Continuing Investors"), the individuals listed as
"Management Investors" on Schedule II hereto and certain other Management
Investors who are offered the opportunity to join in this Agreement by the
Company and who execute a joinder to this Agreement substantially in the form of
Exhibit A-1 hereto (the "Management Investors") and the individuals and trusts
listed as "Other Investors" on Schedule III hereto (the "Other Investors"). As
used herein, CVC, the Continuing Investors, the Management Investors and the
Other Investors are sometimes referred to hereinafter individually as an
"Investor" and collectively as the "Investors."
This Agreement is an annex to the Agreement and Plan of Merger dated
the date hereof (the "Merger Agreement"), binding upon each Investor, without
any further action on the part of such Investor.
Background
A. The Company, Fabri-Steel Products Incorporated, a Michigan
corporation ("Fabri-Steel") and Fabri-Steel Acquisition Corp., a Michigan
corporation ("FSAC"), are parties to the Merger Agreement pursuant to which FSAC
merged with and into Fabri-Steel with the separate existence of FSAC ceasing and
Fabri-Steel being the surviving corporation of the merger (the "Merger"). In
connection with the Merger, all of the outstanding shares of capital stock of
Fabri-Steel owned by the Investors were automatically converted on a one-for-one
basis into new shares of capital stock of the Company and the Company became the
owner of all of the outstanding capital stock of Fabri-Steel.
B. As a consequence of the Merger, the acquisition of Progressive
Stamping Co., Inc. and the Xxxxxx Stud Welding business from TRW Inc., the
Investors hold the number of shares of Class A Common Stock, the number of
shares of Class B Common Stock, the number of shares of Company's Series A 8%
Cumulative Senior Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock"), the number of shares of Company's Series B 12% Cumulative
Junior Preferred Stock, par value $.01 per share (the "Series B Preferred
Stock"), the number of shares of Company's Series C 8% Cumulative Junior
Preferred Stock, par value $.01 per share (the "Series C Preferred Stock"), the
number of shares of Company's Series D 8% Cumulative Junior Preferred Stock, par
value $.01 per share (the "Series D Preferred Stock") and the number of shares
of Series F 10% Senior Preferred Stock ("Series F Preferred Stock") set forth
opposite their respective names on Schedule V hereto. As used herein, Class A
Common Stock and Class B Common Stock are sometimes collectively hereinafter
referred to as the "Common Stock," Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock,
- 1 -
Series D Preferred Stock and Series F Preferred Stock are sometimes collectively
hereinafter referred to as the "Preferred Stock," and the Common Stock and the
Preferred Stock are sometimes collectively hereinafter referred to as the
"Shares".
C. As used herein, the term "Securities" shall mean Preferred Stock
and the Common Stock held by any party hereto, including shares of Common Stock
and Preferred Stock and all other securities of the Company (or a successor to
the Company) received on account of ownership of the Preferred Stock and Common
Stock, including all securities issued in connection with any merger,
consolidation, stock dividend, stock distribution, stock split, reverse stock
split, stock combination, recapitalization, reclassification, subdivision,
conversion or similar transaction in respect thereof; and the term "Company"
shall mean the Company and any of its successors.
D. The Investors and the Company wish to set forth certain agreements
regarding their future relationships and their rights and obligations with
respect to the Securities.
Terms
In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
PURCHASE OF SECURITIES
1.1 Intentionally deleted.
1.2 Intentionally deleted.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY
2.1 Representations and Warranties of the Company. The Company
represents and warrants to, and covenants and agrees with, each of the Investors
as follows:
(a) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware.
(b) The Company has full corporate power and corporate authority
to make, execute, deliver and perform this Agreement and to carry out all of the
transactions provided for herein.
(c) The Company has taken such corporate action as is necessary
or appropriate to enable it to perform its obligations hereunder, including, but
not limited to, the issuance and sale of the Securities to be issued by it, and
this Agreement constitutes the legal,
- 2 -
valid and binding obligation of the Company, enforceable against the Company in
accordance with the terms hereof.
(d) The Securities when issued in compliance with the provisions
of this Agreement will be validly issued, fully paid and non-assessable.
(e) As of the Closing, the authorized capital stock of the
Company will consist of (i) 2,500,000 shares of Class A Common Stock, of which
the number of shares reflected in Schedule V will be issued and outstanding
immediately after the Closing, (ii) 2,500,000 shares of Class B Common Stock, of
which the number of shares reflected in Schedule V will be issued and
outstanding immediately after the Closing, (iii) 910,000 shares of Series A
Preferred Stock, of which the number of shares reflected in Schedule V will be
issued and outstanding immediately after the Closing, (iv) 900,000 shares of
Series B Preferred Stock, of which the number of shares reflected in Schedule V
will be issued and outstanding immediately after the Closing, (v) 950,000 shares
of Series C Preferred Stock, of which the number of shares reflected in Schedule
V will be issued and outstanding immediately after the Closing, (vi) 850,000
shares of Series D Preferred Stock, of which the number of shares reflected in
Schedule V will be issued and outstanding immediately after the Closing, (vii)
65,000 shares of Series E Preferred Stock, of which no shares will be issued and
outstanding immediately after the Closing; and (viii) 35,000 shares of Series F
Preferred Stock, of which the number of shares reflected in Schedule V will be
issued and outstanding after the Closing . As of the Closing, except as provided
herein, there will be no rights, subscriptions, warrants, options, conversion
rights, or agreements of any kind outstanding to purchase from the Company, or
otherwise require the Company to issue, any shares of capital stock of the
Company or securities or obligations of any kind convertible into or
exchangeable for any shares of capital stock of the Company, except for (x) that
certain Stock Purchase Warrant dated April 1, 1999, granted by Fabri-Steel to
Citicorp Mezzanine Partners, L.P., a Delaware limited partnership, which the
Company has assumed by virtue of the Merger and pursuant to the terms of the
such Warrant, and (y) that certain Stock Purchase Warrant, dated March 17, 2000,
granted by the Company to Citicorp Mezzanine III, L.P., a Delaware limited
partnership.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF EACH INVESTOR
3.1 Intentionally deleted.
3.2 Legend.
(a) The certificates representing the Securities shall bear the
following legend in addition to any other legend required under applicable law:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED WITHOUT REGISTRATION UNDER THE
- 3 -
SECURITIES ACT OR STATE SECURITIES LAWS OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
TERMS AND CONDITIONS OF A SECURITIES PURCHASE AND HOLDERS AGREEMENT BY
AND AMONG THE COMPANY AND THE HOLDERS SPECIFIED THEREIN, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. THE
SALE, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES IS SUBJECT TO
THE TERMS OF SUCH AGREEMENT AND THE SECURITIES ARE TRANSFERABLE ONLY
UPON PROOF OF COMPLIANCE THEREWITH.
(b) The certificates representing the Series A Preferred Stock
placed into escrow pursuant to that certain Recapitalization Agreement, dated
March 25, 1998, by and among Fabri-Steel, CVC and other signatories thereto (the
"Recapitalization"), shall bear the following legend in addition to the legend
set forth in Section 3.2(a) and any other legend required under applicable law:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO THE
TERMS AND CONDITIONS OF AN ESCROW AGREEMENT BY AND AMONG THE COMPANY,
CITICORP VENTURE CAPITAL, LTD. AND THE OTHER SIGNATORIES THERETO A
COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY. THE SALE, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES AND
THE PROCEEDS OF SUCH SALE, TRANSFER OR OTHER DISPOSITION IS SUBJECT TO
THE TERMS OF SUCH AGREEMENT AND THE SECURITIES ARE TRANSFERABLE ONLY
UPON PROOF OF COMPLIANCE THEREWITH. UPON REQUEST, THIS LEGEND WILL BE
REMOVED UPON TERMINATION OF SUCH ESCROW AGREEMENT.
3.3 Intentionally deleted.
3.4 Restrictions on Transfers of Securities.
The following restrictions on Transfer shall apply to all Securities
owned by any Investor or Permitted Transferee:
(a) No Investor or Permitted Transferee shall Transfer (other
than in connection with a redemption or purchase by the Company) any Securities
unless (i) such Transfer is to a person or entity approved in advance in writing
by the holders of at least forty percent (40%) of the outstanding Common Stock
then held by the Investors (including shares held by the transferor) and (ii)
such Transfer complies with the provisions of Article IV, this
- 4 -
Section 3.4, and, in addition, in the case of Management Investors, Article VI
of this Agreement. Any purported Transfer in violation of this Agreement shall
be null and void and of no force and effect and the purported transferee shall
have no rights or privileges in or with respect to the Company. As used herein,
"Transfer" includes the making of any sale, exchange, assignment, hypothecation,
gift, security interest, pledge or other encumbrance, or any contract therefor,
any voting trust or other agreement or arrangement with respect to the transfer
of voting rights or any other beneficial interest in any of the Securities, the
creation of any other claim thereto or any other transfer or disposition
whatsoever, whether voluntary or involuntary, affecting the right, title,
interest or possession in or to such Securities.
Prior to any proposed Transfer of any Securities (except a Transfer to
a Permitted Transferee of CVC), the holder thereof shall give written notice to
the Company describing the manner and circumstances of the proposed Transfer
accompanied by a written opinion of legal counsel, addressed to the Company and
the transfer agent, if other than the Company, and reasonably satisfactory in
form and substance to each addressee, to the effect that the proposed Transfer
of the Securities may be effected without registration under the Securities Act
and applicable state securities laws. Each certificate evidencing the Securities
transferred shall bear the legends set forth in Section 3.2, except that such
certificate shall not bear such legend if the opinion of counsel referred to
above is to the further effect that such legend is not required in order to
establish compliance with any provision of the Securities Act or applicable
state securities laws.
Nothing in this Section 3.4(a) shall prevent the Transfer, free of any
restrictions under this Agreement, of Securities by an Investor or a Permitted
Transferee to one or more of its Permitted Transferees, or to the Company;
provided, however, that each such Investor or Permitted Transferee shall take
such Securities subject to and be fully bound by the terms of this Agreement
applicable to it with the same effect as if it were a party hereto; and
provided, further, that (i) no entity or person shall be a Permitted Transferee
unless such transferee executes a joinder to this Agreement in substantially the
form attached hereto as Exhibit A-2, which joinder states with respect to any
Permitted Transferee other than a natural person, that such Permitted Transferee
agrees to Transfer such Securities to the Investor from whom such Permitted
Transferee received such Securities immediately prior to the occurrence of any
event which would result in such person no longer being a Permitted Transferee
of such Investor, and (ii) no Transfer shall be effected except in compliance
with the registration requirements of the Securities Act or pursuant to an
available exemption therefrom. Each Investor agrees to accept the Transfer of
Securities to such Investor at any time from a Transferee of such Investor.
(b) As used herein, "Permitted Transferee" shall mean:
(i) in the case of any Investor or Permitted Transferee who
is a natural person, such Investor's or Permitted Transferee's spouse or
children or grandchildren (in each case, natural or adopted), any trust for the
exclusive benefit of such Investor or Permitted Transferee or such Investor's or
Permitted Transferee's spouse or children or grandchildren (in each case,
natural or adopted), or any corporation or partnership in which the direct and
beneficial owner of all of the equity interest is such individual Investor or
Permitted Transferee or such Investor's or Permitted Transferee's spouse or
children or grandchildren (in each case, natural or adopted) (or any trust for
the exclusive benefit of such persons);
- 5 -
(ii) in the case of any Investor or Permitted Transferee who
is, in each case, a natural person, the heirs, executors, administrators or
personal representatives upon the death of such Investor or Permitted Transferee
or upon the incompetency or disability of such Investor or Permitted Transferee
for purposes of the protection and management of such Investor's or Permitted
Transferee's assets;
(iii) in the case of any Investor or Permitted Transferee
that is a trust, the grantor of such trust, any beneficiary of such trust who is
a spouse or child or grandchild (in each case, natural or adopted) of the
grantor of such trust, or any corporation, partnership, limited liability
company, trust or other entity in which all direct and beneficial ownership
interests are owned by the grantor of such trust, the spouse of the grantor of
such trust or one or more children or grandchildren (in each case, natural or
adopted) of the grantor of such trust;
(iv) in the case of any Investor or Permitted Transferee,
any person or other entity if such person or other entity takes such Securities
pursuant to a sale in connection with a Public Offering (as defined in Section
6.1(c)) or following a Public Offering in open market transactions or under Rule
144 under the Securities Act; and
(v) in the case of CVC or any CVC Affiliate, any of its
employees, officers or directors, any trust for any such employee, officer or
director's benefit or the benefit of any such person's spouse, children or
grandchildren (in each case, natural or adopted), any corporation, partnership
or other entity at least a majority of the equity in which is held in the
aggregate by CVC, its employees, officers or directors or any of their
respective Affiliates, any managers of the Company (in connection with the sale
of a maximum aggregate amount of 1,745 shares of Class B Common Stock and 5,511
shares of Series B Preferred Stock by CVC or any CVC Affiliate) or any directors
of the Company.
(c) As used herein, "Affiliate" means with respect to any person,
(i) a corporation wholly-owned by a corporation that owns, directly or
indirectly through one or more intermediaries, more than fifty percent of such
person, or (ii) a corporation in which such person owns, directly or indirectly
through one or more intermediaries, more than fifty percent (50%) of the
outstanding capital stock of such corporation.
3.5 Notation. A notation will be made in the appropriate transfer
records of the Company with respect to the restrictions on transfer of the
Securities referred to in this Agreement.
3.6 Limitation on Repurchase of Company Stock. Each Investor
understands that the Company has entered or will enter into certain financing
agreements which will contain prohibitions, restrictions and limitations on the
ability of the Company to purchase any of the Securities and to pay dividends on
the Securities.
3.7 Reliance. Each Investor acknowledges that the Company and each of
the other Investors is entering into this Agreement in reliance upon such
Investor's representations and warranties and other covenants and agreements
herein.
- 6 -
3.8 Accredited Investor. Each of the Investors listed on Schedule V is
an "accredited investor" within the meaning of Rule 501 promulgated under the
Securities Act.
ARTICLE IV
OTHER COVENANTS AND REPRESENTATIONS
4.1 Observers' Rights. So long as CVC or its Affiliates own at least
5% (in the aggregate) of the Common Stock outstanding, if no employee of CVC or
its Affiliates is a member of the Company's Board of Directors, CVC shall have
the right to designate two observers (the "Observers") to attend meetings of the
Company's Board of Directors and committees thereof. If at least one employee of
CVC is a member of the Company's Board of Directors, CVC shall have the right to
designate one Observer to attend meetings of the Company's Board of Directors
and committees thereof. So long as the Xxxxxxx Group (as hereinafter defined)
own at least 1.9% of the Common Stock outstanding, if no member or designee of
the Xxxxxxx Group is a member of the Company's Board of Directors, the Xxxxxxx
Group shall have the right to designate one Observer to attend meetings of the
Company's Board of Directors and committees thereof. So long as the Im'Oberstag
Group (as hereinafter defined) own at least 5% of the Common Stock outstanding,
if no member or designee of the Im' Oberstag Group is a member of the Company's
Board of Directors, the Im'Oberstag Group shall have the right to designate one
Observer to attend meetings of the Company's Board of Directors and committees
thereof. The Observers shall not have the right to vote on any matter presented
to the Board of Directors or any committee thereof. The Company shall give each
Observer written notice of each meeting of the Board of Directors and committees
thereof at the same time and in the same manner as the members of the Board of
Directors or such committee receive notice of such meetings, and the Company
shall permit each Observer to attend as an observer all meetings of its Board of
Directors and committees thereof. Each Observer shall be entitled to receive all
written materials and other information given to the directors in connection
with such meetings at the same time such materials and information are given to
the directors, and each Observer shall keep such materials and information
confidential. If the Company proposes to take any action by written consent in
lieu of a meeting of its Board of Directors or a committee thereof, the Company
shall give written notice thereof to each Observer prior to the effective date
of such consent. The Company shall provide to each Observer all written
materials and other information given to the directors in connection with such
action by written consent at the same time such materials and information are
given to the directors, and each Observer shall keep such materials and
information confidential. The Company shall pay the reasonable out-of-pocket
expenses of each Observer incurred in connection with attending such meetings.
As used herein, the "Xxxxxxx Group" means the individuals designated on Schedule
VI hereto as "Xxxxxxx Group" members and the "Im'Oberstag Group" means the
individuals designated on Schedule VI hereto as "Im'Oberstag Group" members.
4.2 Financial Statements and Other Information. So long as CVC or its
Affiliates or any other Investor owns 1% or more of the outstanding Common
Stock, the Company shall deliver to CVC or such Investor:
(a) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the Company,
consolidated balance sheets
- 7 -
of the Company and its subsidiaries as of the end of such period, and
consolidated statements of income and cash flows of the Company and its
subsidiaries for the period then ended prepared in conformity with generally
accepted accounting principles applied on a consistent basis, except as
otherwise noted therein, and subject to the absence of footnotes and to year-end
adjustments; and
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a consolidated and consolidating
balance sheet of the Company and its subsidiaries as of the end of such year,
and consolidated and consolidating statements of income and cash flows of the
Company and its subsidiaries for the year then ended prepared in conformity with
generally accepted accounting principles applied on a consistent basis, except
as otherwise noted therein, together with an auditor's report thereon of a firm
of established national reputation.
4.3 Regulatory Compliance Cooperation. So long as CVC or its
Affiliates beneficially own any of the Securities, before the Company redeems,
purchases or otherwise acquires, directly or indirectly, or converts or takes
any action with respect to the voting rights of, any shares of any class of its
capital stock or any securities convertible into or exchangeable for any shares
of any class of its capital stock, the Company shall give CVC thirty (30) days
prior written notice of such pending action. Upon the written request of CVC
made within thirty (30) days after its receipt of any such notice, stating that
after giving effect to such action CVC would have a Regulatory Problem (as
described below), the Company will defer taking such action for such period (not
to extend beyond ninety (90) days after CVC's receipt of the Company's original
notice) as CVC requests to permit it and its Affiliates to reduce the quantity
of Securities held by it and its Affiliates in order to avoid the Regulatory
Problem. In addition, the Company will not be a party to any merger,
consolidation, recapitalization or other transaction pursuant to which CVC would
be required to take any voting securities, or any securities convertible into
voting securities, which might reasonably be expected to cause CVC to have a
Regulatory Problem. For purposes of this paragraph, a person will be deemed to
have a "Regulatory Problem" when such person and such person's Affiliates would
own, control or have power over a greater quantity of securities of any kind
issued by the Company than are permitted to be owned under any requirement of
any governmental authority applicable to such person.
4.4 Sale of the Company.
(a) So long as the Company has not consummated a Public Offering
(as defined in Section 6.1(c)), if the Board of Directors and holders of at
least fifty percent (50%) of the Company's Common Stock then outstanding approve
the sale of the Company to a person (whether by merger, consolidation, sale of
all or substantially all of its assets or sale of all of the outstanding capital
stock) (an "Approved Sale"), each Investor and Permitted Transferee will consent
to, vote for, and raise no objections against, and waive dissenters and
appraisal rights (if any) with respect to, the Approved Sale, and if the
Approved Sale is structured as a sale of stock, each Investor and Permitted
Transferee will agree to sell and will be permitted to sell all of such
Investor's and Permitted Transferee's Common Stock on the terms and conditions
approved by the Board of Directors and the holders of a majority of the Common
Stock then outstanding. Each Investor and Permitted Transferee will take all
necessary and desirable actions in connection with the consummation of an
Approved Sale.
- 8 -
(b) Each Investor and Permitted Transferee shall, in connection
with a sale of its Common Stock pursuant to this Section 4.4, at the request of
the Company and without further cost and expense to the Company, execute and
deliver such other instruments of conveyance and transfer and take such other
actions as may reasonably be requested in order to consummate the Approved Sale.
(c) The obligations of each of the Investors with respect to an
Approved Sale are subject to the satisfaction of the conditions that: (i) upon
the consummation of the Approved Sale all of the Investors and Permitted
Transferees will receive the same form and amount of consideration per share of
Common Stock, or if any holder of Common Stock is given an option as to the form
and amount of consideration to be received, all Investors and Permitted
Transferees will be given the same option; and (ii) the terms of sale shall not
include any indemnification, guaranty or the similar undertaking of the Investor
(other than undertakings of Management Investors in respect of continued
employment) that (A) is not made or given pro rata with other Investors on the
basis of share ownership or (B) could result in liability to such Investor that
is in excess of the fair market value of the consideration to be received by
such Investor in the Approved Sale.
4.5 Tag-Along.
(a) (i) Except as otherwise provided in Section 4.5(a)(v),
neither CVC nor any Affiliate of CVC who holds in excess of 5% of the Common
Stock of the Company (each a "Seller") shall sell any Common Stock in any
transaction or series of related transactions unless all "Holders" (as
hereinafter defined) are offered an equal opportunity to participate in such
transaction or transactions on a pro-rata basis and on identical terms
(including price and type of consideration paid). As used in this Section 4.5,
"Holders" shall mean the Investors (other than the Sellers) and their Permitted
Transferees.
(ii) Prior to any sale of Common Stock subject to these
provisions, the Seller shall notify the Company in writing of the proposed sale.
Such notice (the "Seller's Notice") shall set forth: (A) the number of shares of
Common Stock subject to the proposed sale; (B) the name and address of the
proposed purchaser; and (C) the proposed amount of consideration and terms and
conditions of payment offered by such proposed purchaser. The Company shall
promptly, and in any event within 15 days, mail or cause to be mailed the
Seller's Notice to each Holder. A Holder may exercise the tag-along right by
delivery of a written notice (the "Tag-Along Notice") to the Seller within 15
days of the date the Company mailed or caused to be mailed the Seller's Notice.
The Tag-Along Notice shall state the number of shares of Common Stock that the
Holder proposes to include in the proposed sale. If no Tag-Along Notice is
received during the 15-day period referred to above, the Seller shall have the
right for a 120-day period to effect the proposed sale of shares of Common Stock
on terms and conditions no more favorable than those stated in the notice and in
accordance with the provisions of this Section 4.5.
(iii) Notwithstanding anything herein to the contrary, a
Seller may make any of the following sales without offering the Holders the
opportunity to participate: (a) sales by a Seller to any Affiliate or Permitted
Transferee, provided that the proposed purchaser (except a Permitted Transferee
by virtue of Section 3.4(b)(iv) hereof) agrees in writing
- 9 -
to be bound by the provisions of this Agreement; (b) sales pursuant to an
effective registration statement under the Securities Act; (c) sales pursuant to
an Approved Sale; (d) sales to the Company for resale to managers (up to a
maximum aggregate amount of 1,745 shares of Class B Common Stock and 5,511
shares of Series B Preferred Stock) or directors of the Company, provided that
the Company shall within 90 days thereafter resell such transferred shares to
managers or directors of the Company at not less than the price per share (not
including accrued and unpaid dividends) received by such Seller in its sale to
the Company and (e) sales other than those specified in the foregoing (a)
through (d) which in the aggregate do not exceed 5% of the Common Stock
outstanding.
(iv) Each Investor acknowledges for itself and its
transferees that CVC may grant in the future tag-along rights to other holders
of Common Stock and such holders will (a) have substantially the same
opportunity to participate in sales by CVC as provided to the parties hereto,
and (b) be included in the calculation of the pro rata basis upon which Holders
may participate in a sale.
(v) The tag-along obligations of the Sellers and the rights
of the Holders with respect thereto provided under this Section 4.5 shall
terminate upon the earlier of (a) the consummation of a Public Offering (as
defined in Section 6.1(c)), and (b) the day after the date on which CVC and its
Affiliates own less than 10% of the Common Stock.
(vi) Notwithstanding the requirements of this Section 4.5, a
Seller may sell Common Stock at any time without complying with the requirements
of Section 4.5(a)(ii) so long as the Seller deposits into escrow with an
independent third party at the time of sale that amount of the consideration
received in the sale equal to the "Escrow Amount." The "Escrow Amount" shall
equal that amount of consideration as all the Holders would have been entitled
to receive if they had the opportunity to participate in the sale on a pro rata
basis, determined as if each Holder (A) delivered a Tag-Along Notice to the
Seller in the time period set forth in Section 4.5(a)(ii) and (B) proposed to
include all of its shares of Common Stock in the sale.
No later than five (5) business days after the date of the sale, the
Seller shall notify the Company in writing of the sale. Such notice (the "Escrow
Notice") shall set forth the information required in the Seller's Notice, and in
addition, such notice shall state the name of the escrow agent and, if the
consideration (in whole or in part) for the sale was cash, then the account
number of the escrow account. The Company shall promptly, and in any event
within 10 days, mail or cause to be mailed the Escrow Notice to each Holder.
A Holder may exercise the tag-along right by delivery to the Seller,
within 15 days of the date the Company mailed or caused to be mailed the Escrow
Notice, of (i) a written notice specifying the number of shares of Common Stock
it proposes to sell, and (ii) the certificates for such Common Stock, with stock
powers duly endorsed in blank.
Promptly after the expiration of the 15th day after the Company has
mailed or caused to be mailed the Escrow Notice, (A) the Seller shall purchase
that number of shares of Common Stock as Seller would have been required to
include in the sale had Seller complied with the provisions of Section
4.5(a)(ii), (B) all shares of Common Stock not required to be
- 10 -
purchased by Seller shall be returned to the Holders thereof, and (C) all
remaining funds and other consideration held in escrow shall be released to
Seller. If Seller received consideration other than cash in its sale, Seller
shall purchase the shares of Common Stock tendered by paying to the Holders
non-cash consideration and cash in the same proportion as received by Seller in
the sale.
(vii) Each Holder that exercises its tag-along rights
pursuant to this Section 4.5 shall, at the request of Seller and without further
cost and expense to Seller, execute and deliver such other instruments of
conveyance and transfer and take such other actions as may reasonably be
requested in order to consummate the proposed sale of Common Stock by Seller and
the Holders which have exercised their tag-along rights pursuant to this Section
4.5.
4.6 Preemptive Rights.
(a) So long as the Company has not consummated a Public Offering
(as defined in Section 6.1(c)), if the Company proposes to issue and sell any of
its shares of Common Stock or any securities containing options or rights to
acquire any shares of Common Stock or any securities convertible into shares of
Common Stock (such shares and other securities are hereinafter collectively
referred to as "Newly Issued Stock") to CVC, its "affiliates" (for purposes of
this Section 4.6, as defined in Rule 12b-2 of the rules promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) to whom CVC
has Transferred Common Stock (hereinafter, a "CVC Issuance"), the Company will
first offer to each of the other Investors who (i) holds in excess of 1% of the
Company's Common Stock and (ii) is an "accredited investor" as defined in Rule
501(a) promulgated under the Securities Act (each a "Qualified Investor") a
portion of the number or amount of such securities proposed to be sold in any
such transaction or series of related transactions equal to the product of the
percentage each such Qualified Investor holds of all shares of Common Stock then
held by the Investors and the number of shares proposed to be issued and sold by
the Company in any such transaction or series of related transactions, all for
the same price and upon the same terms and conditions as the securities that are
being offered to CVC, its affiliates and its Permitted Transferees to whom CVC
has Transferred Common Stock, in such transaction or series of transactions.
(b) Notwithstanding the foregoing, the provisions of this Section
4.6 shall not be applicable to the issuance of shares of Common Stock (i) upon
the conversion of shares of one class of Common Stock into shares of another
class, (ii) as a dividend on the outstanding shares of Common Stock, (iii) in
any transaction in respect of a Security that is available to all holders of
such Security on a pro rata basis, (iv) in connection with grants of stock or
options to employees or directors of the Company or (v) in a public offering
pursuant to a registration statement filed with, and declared effective by, the
Securities and Exchange Commission pursuant to the Securities Act.
(c) The Company will cause to be given to the Qualified Investors
a written notice setting forth the terms and conditions upon which the Qualified
Investors may purchase such shares or other securities (the "Preemptive
Notice"). After receiving a Preemptive Notice, the Qualified Investors must
reply, in writing, within 15 days of the date of such
- 11 -
Preemptive Notice that such persons agree to purchase the shares or other
securities offered pursuant to this Section 4.6 on the date of sale to CVC, its
affiliates or its Permitted Transferees to whom CVC has Transferred Common Stock
(the "Preemptive Reply"). If any Qualified Investor fails to make a Preemptive
Reply in accordance with this Section 4.6, shares or other securities offered to
such Qualified Investor in accordance with this Section 4.6 may thereafter, for
a period not exceeding six months following the expiration of such 15-day
period, be issued, sold or subjected to rights or options to CVC, its affiliates
and its Permitted Transferees to whom CVC has Transferred Common Stock at a
price not less than that at which they were offered to the Qualified Investors.
Any such shares or other securities not so issued, sold or subjected to rights
or options to CVC, its affiliates and its Permitted Transferees to whom CVC has
Transferred Common Stock during such six-month period will thereafter again be
subject to the preemptive rights provided for in this Section 4.6.
(d) Notwithstanding the requirements of this Section 4.6, the
Company may make a CVC Issuance at any time without complying with the
requirements of Section 4.6(a) and (c) so long as the Company deposits into
escrow with an independent third party at the time of sale a portion of the
Newly Issued Stock equal to the "Preemptive Escrow Amount." The "Preemptive
Escrow Amount" shall equal that amount of Newly Issued Stock which the Qualified
Investors would have been entitled to receive if they had the opportunity to
participate in the CVC Issuance on a pro rata basis in accordance with Section
4.6(a), determined as if each Qualified Investor (A) delivered a Preemptive
Reply to the Company in the time period set forth in Section 4.6(c) and (B)
proposed to purchase all of the Newly Issued Stock to which such Qualified
Investor would have been entitled to purchase pursuant to Section 4.6(a) had the
Company given such Qualified Investor a Preemptive Notice.
Within 10 days after the date of the CVC Issuance, the Company shall
notify the Qualified Investors in writing of the CVC Issuance. Such notice (the
"Preemptive Escrow Notice") shall set forth the terms and conditions upon which
the Qualified Investors may purchase shares of Newly Issued Stock, the pro rata
amount of Newly Issued Stock that such Qualified Investor is entitled to receive
(such amount to equal the amount of Newly Issued Stock that such Qualified
Investor would have been entitled to receive if it had the opportunity to
participate in the CVC Issuance on a pro rata basis in accordance with Section
4.6(a)) and the name of the escrow agent.
A Qualified Investor may exercise the preemptive right by delivery to
CVC, within 30 days of the date the Company mailed or caused to be mailed the
Preemptive Escrow Notice, of a written notice specifying the number of shares of
Newly Issued Stock it proposes to purchase of the number of shares of Newly
Issued Stock such Qualified Investor is entitled to purchase (the "Preemptive
Election").
Promptly after the expiration of the 30th day after the Company has
mailed or caused to be mailed the Preemptive Escrow Notice, (A) the Company
shall sell to each Qualified Investor that number of shares of Newly Issued
Stock that each such Qualified Investor proposed to purchase pursuant to its
Preemptive Election and (B) all remaining Newly Issued Stock held in escrow
shall be sold to CVC upon the terms and conditions set forth in the Preemptive
Escrow Notice.
- 12 -
4.7 Purchaser Representative. In the event of the Company or any
Investor enters into any negotiation or transaction (including any transaction
pursuant to Section 4.4 and 4.5 of this Agreement) for which Rule 506 (or any
similar rule then in effect) promulgated under the Securities Act may be
available (including a merger, consolidation or other reorganization), each
Investor will, at the request of Company, appoint a purchaser representative (as
such term is defined in Rule 501(h) promulgated under the Securities Act)
reasonably acceptable to the Company. Each Investor will be responsible for the
fees of the purchaser representative so appointed.
4.8 Common Stock and Series B Preferred Stock. Notwithstanding
anything to the contrary herein, unless approved in advance in writing by the
holders of two-thirds of the shares of the Series A Preferred Stock, the parties
agree that until (i) the Series A Preferred Stock owned by the Continuing
Investors or any of their Permitted Transferees is redeemed, repurchased,
retired or otherwise acquired by any party other than a Permitted Transferee of
any Continuing Investor or (ii) the Company has repurchased 100% of the Series A
Preferred Stock pursuant to Section 4.B(2)(a) of the Holdings Certificate of
Incorporation:
(a) the Company shall not redeem, repurchase, retire or otherwise
acquire or pay any cash dividends in respect of any Common Stock or Series B
Preferred Stock; and
(b) no Investor shall sell or exchange (including by merger and
consolidation) any shares of Common Stock or Series B Preferred Stock unless
such sale is to a Permitted Transferee; provided, however, that the foregoing
provisions shall not prohibit the Company from repurchasing shares of Common
Stock or Series B Preferred Stock from a former employee of the Company (or a
subsidiary of the Company) where such repurchase arises from the Company's
option to repurchase such shares upon termination of such employee's employment
with the Company (or subsidiary) pursuant to a written agreement between the
Company and such employee.
4.9 Confidentiality. Each Investor shall, and shall cause his or her
affiliates and representatives to, keep confidential and not disclose to any
other person or entity or use for his or its own benefit or the benefit of any
other person or entity (i) any confidential proprietary information, technology,
know-how, trade secrets (including, without limitation, all results of research
and development), product formulas, industrial designs, franchises, inventions
or other industrial and intellectual property in his, her or their possession or
control regarding the Company and its subsidiaries or their respective
businesses and operations. The obligations of the Investors under this Section
4.9 shall not apply to information which (i) is or becomes generally available
to the public without breach of the commitment provided for in this Section; or
(ii) is required to be disclosed by law, order or regulation of a court or
tribunal or governmental authority; provided, however, that, in any such case,
the Investor subject to such requirement shall notify the Company as early as
reasonably practicable prior to disclosure to allow the Company to take
appropriate measures to preserve the confidentiality of such information at the
cost of Company.
4.10 Repurchase Rights for the Company. The Company shall have the
right and option, upon 15 days prior written notice, exercisable at any time, to
purchase up to 1,745
- 13 -
shares of Class B Common Stock and 5,511 shares of Series B Preferred Stock from
CVC in order for the Company to satisfy its obligations to sell up to 1,745
shares of Common Stock and 5,511 shares of Series B Preferred Stock to various
Management Investors. Any such purchase of Class B Common Stock from CVC by the
Company shall be at a purchase price per share of $10.00. Any such purchase of
Series B Preferred Stock from CVC by the Company shall be at a purchase price
per share of $10.00 plus accrued and unpaid dividends thereon to the date of
purchase.
ARTICLE V
CORPORATE ACTIONS
5.1 Certificate of Incorporation and Bylaws. Each Investor has
reviewed the Certificate of Incorporation and Bylaws of the Company in the forms
attached hereto as Exhibits B-1 and B-2, respectively, and hereby approves and
ratifies the same.
5.2 Directors and Voting Agreements.
(a) So long as the Company has not consummated a Public Offering
(as defined in Section 6.1(c)), each Investor and Permitted Transferee agrees
that it shall take, at any time and from time to time, all action necessary
(including voting the Class A Common Stock and Preferred Stock owned by him, her
or it, calling special meetings of stockholders and executing and delivering
written consents) to ensure that the Board of Directors of the Company is
composed at all times of up to five (5) persons as follows: one individual
designated by the Continuing Investors, two (2) individuals designated by CVC;
and up to two (2) independent directors, who shall be designated by CVC (to the
extent permitted by applicable law as determined by CVC in its sole discretion),
subject to the right of the holders of a majority of the outstanding shares of
Class A Common Stock (including any shares of Class A Common Stock held by CVC)
to veto the election of any such independent director, provided, that in the
event that CVC concludes that it is unable to designate, or elects not to
designate for any reason, one or more of such independent directors or the
election of any such independent director is not approved by the holders of a
majority of the outstanding shares of Class A Common Stock, such directorship(s)
shall not be filled by the remaining members of the Company's Board of Directors
but shall remain vacant until the election of a director designated by CVC to
fill such vacancy in accordance with this Section 5.2. The initial directors
named pursuant to this Section 5.2 shall be Xxxxxxx X. Xxxxxxxxx, Xxxxxxx X.
Xxxxxxx, Xxx Xxx, Xxxxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxx.
(b) Upon the affirmative vote of a majority of the shares of
Common Stock, the Board of Directors of the Company shall be increased in
accordance with such vote, with the new directorship(s) to be filled in the
manner determined by the vote of a majority of the shares of Common Stock;
provided, however, that any increase in the amount of directorships shall not
affect the rights of the Continuing Investors and CVC to designate directors
pursuant to Section 5.2(a) hereof.
5.3 Right to Remove Certain of the Company's Directors. So long as the
Company has not consummated a Public Offering (as defined in Section 6.1(c)),
each of CVC
- 14 -
and the Continuing Investors, as the case may be, may request that any director
designated by it be removed (with or without cause) by written notice to the
other Investors, and, in any such event, each Investor shall promptly consent in
writing or vote or cause to be voted all shares of Class A Common Stock and
Preferred Stock now or hereafter owned or controlled by it for the removal of
such person as a director. In the event any person ceases to be a director, such
person shall also cease to be a member of any committee of the Board of
Directors of the Company.
5.4 Right to Fill Certain Vacancies in Company's Board. So long as the
Company has not consummated a Public Offering (as defined in Section 6.1(c)), in
the event that a vacancy is created on the Company's Board of Directors at any
time by the death, disability, retirement, resignation or removal (with or
without cause) of a director designated by CVC or the Continuing Investors, as
the case may be, or if otherwise there shall exist or occur any vacancy on the
Company's Board of Directors in a directorship subject to designation by CVC or
the Continuing Investors, as the case may be, such vacancy shall not be filled
by the remaining members of the Company's Board of Directors but each Investor
hereby agrees promptly to consent in writing or vote or cause to be voted all
shares of Class A Common Stock and Preferred Stock now or hereafter owned or
controlled by it to elect that individual designated to fill such vacancy and
serve as a director, as shall be designated by CVC or the Continuing Investors,
as the case may be.
5.5 Amendment of Certificate of Incorporation and Bylaws. So long as
the Company has not consummated a Public Offering (as defined in Section
6.1(c)), each Investor agrees that it shall not consent in writing or vote or
cause to be voted any shares of Common Stock and Preferred Stock now or
hereafter owned or controlled by it in favor of any amendment, repeal,
modification, alteration or rescission of, or the adoption of any provision in
the Company's Certificate of Incorporation or Bylaws inconsistent with this
Agreement unless CVC consents in writing to such action or votes or cause to be
voted all of the shares of Common Stock and Preferred Stock held by it in favor
of such action; provided that, so long as the Company has not consummated a
Public Offering (as defined in Section 6.1(c)), CVC shall not consent to any
amendment which would adversely affect the Continuing Investors' right to
designate a director to the Company's Board of Directors or remove, or fill any
vacancy created with respect to, any director designated by the Continuing
Investors as set forth in Sections 5.2, 5.3 and 5.4 of this Agreement.
5.6 Termination of Voting Agreements. The voting agreements in
Sections 5.2, 5.3, 5.4 and 5.5 shall terminate ten (10) years from the date of
this Agreement or such longer period as permitted under Delaware law.
5.7 Officers. Each Investor approves the election of the following
officers of the Company, together with such other officers as may be elected or
appointed by the Company or its Board of Directors:
- 15 -
Name Position
---- --------
Xxx X. Xxx President and Chief Executive
Officer
Xxxx X. XxxXxxxxxx Senior Vice President and Chief
Financial Officer
Xxxxx Xxxxxxx Vice President and Secretary
ARTICLE VI
ADDITIONAL RESTRICTIONS ON TRANSFERS OF
SECURITIES HELD BY MANAGEMENT INVESTORS
6.1 Certain Definitions. The terms defined below shall have the
following meanings when used in this Article VI:
(a) "Company" means the Company and all other entities in which
the Company from time to time owns, directly or indirectly, fifty percent (50%)
or more of the stock or assets, and their respective successors.
(b) "Cause", when used in connection with the termination of a
Management Investor's employment with the Company (or any of its subsidiaries),
means the Management Investor's (i) act or acts of dishonesty, moral turpitude
or criminality, (ii) failure to perform such Management Investor's duties as an
employee as reasonably determined by the Board of Directors of the Company (or
any of its subsidiaries) acting in good faith after reasonable notice to such
employee by the Board of Directors of the Company (or any of its subsidiaries)
and, if so recommended by such Board of Directors, after such employee has not
cured such failure after 30 days opportunity to do so, or (iii) willful or
deliberate violations of his obligations to the Company (or any of its
subsidiaries) (whether such obligations are designated by the Board of Directors
or are set forth in an employment agreement) that result in injury to the
Company or any of its subsidiaries .
(c) "Public Offering" means a successfully completed firm
commitment underwritten public offering pursuant to an effective registration
statement under the Securities Act (other than (i) a Special Registration
Statement (as defined in Section 6.3(a)(iii)) or (2) a registration statement
relating to a Unit Offering (as defined in Section 6.3(a)(iii))) in respect of
the offer and sale of shares of Common Stock for the account of the Company
resulting in aggregate net proceeds to the Company and any stockholder selling
shares of Common Stock in such offering of not less than $20,000,000.
(d) "Recapitalization Date" means March 25, 1998.
(e) "Securities" means any and all of the Shares and all other
securities of the Company (or a successor to the Company) received on account of
ownership of the Shares, including any and all securities issued in connection
with any merger, consolidation, stock dividend, stock distribution, stock split,
reverse stock split, stock combination, recapitalization, reclassification,
subdivision, conversion or similar transaction in respect thereof.
- 16 -
6.2 Restrictions on Transfer. In addition to the restrictions imposed
by Section 3.4, and notwithstanding anything to the contrary contained herein,
no Management Investor shall effect a Transfer of any Securities prior to the
fifth anniversary of the Recapitalization Date other than (i) pursuant to
Section 4.4 in connection with an Approved Sale, (ii) pursuant to Section 4.5 in
connection with the exercise of "Tag-Along Rights", (iii) pursuant to Section
6.3 in connection with the Purchase Option (as hereinafter defined), (iv) with
the consent of the Company (as evidenced by a resolution duly adopted by at
least a majority of the non-employee members of the Company's Board of
Directors), (v) to the heirs, executors, administrators or personal
representatives upon the death of the Management Investor in question or upon
the incompetency or disability or such Management Investor for purposes of the
protection and management of such Management Investor's assets, (vi) in
connection with a Public Offering in which such Management Investor is permitted
to participate or (vii) pursuant to Sections 1.1 and 1.2 of the Preferred
Stockholders Agreement (as hereinafter defined) in connection with the exercise
of preferred stock tag-along rights and take-along rights. In exercising the
consent and approval provided for in clause (iv), the Company may employ its
sole discretion in evaluating the nature of the proposed transferee and the
Company may impose such conditions on Transfer as it deems appropriate in its
sole discretion, including, but not limited to, requirements that the transferee
be an employee of the Company or any of its subsidiaries and that the transferee
purchase the Management Investor's Securities as a "Management Investor" subject
to the restrictions of this Article VI. In the event any Transfer is authorized
pursuant to clause (iv) to an employee of the Company or any of its subsidiaries
as a "Management Investor," such employee shall execute an agreement, in form
and substance satisfactory to the Company, pursuant to which such employee shall
agree to be bound by the terms and conditions of this Agreement, and such other
provisions as the Company may determine, and upon such execution such employee
shall be entitled to the benefit of such provisions hereof and such other
provisions as the Company determines and are set forth in such agreement. Any
purported Transfer in violation of this Agreement shall be null and void and of
no force and effect and the purported transferees shall have no rights or
privileges in or with respect to the Company. Notwithstanding the foregoing
provisions, each Management Investor agrees that he or she will not effect a
Transfer of any Securities prior to the lapse of such period of time following
acquisition thereof as may be required to comply with applicable state
securities laws.
For the purposes of this Agreement, "Preferred Stockholders Agreement"
means the Preferred Stockholders Agreement, dated as of even date herewith, by
and among the Investors.
6.3 Purchase Option.
(a) General Terms. In the event that on or prior to the fifth
anniversary of the Recapitalization Date, any Management Investor shall cease to
be employed by the Company (or any of its subsidiaries) for any reason
(including, but not limited to, death, temporary or permanent disability,
retirement at age 65 or more under the Company's (or any of its subsidiary's)
normal retirement policies, resignation or termination by the Company (or any of
its subsidiaries), with or without Cause), other than by reason of a leave of
absence approved by the Company (or any of its subsidiaries), such Management
Investor (or his heirs, executors, administrators, transferees, successors or
assigns) shall give prompt notice to the Company of
- 17 -
such termination (except in the case of termination by the Company (or any of
its subsidiaries) with or without Cause), and the Company, or one or more
designee(s) selected by a majority of the members of the Board of Directors,
shall have the right and option at any time within 90 days after the later of
the effective date of such termination of employment (the "Termination Date") or
the date of the Company's receipt of the aforesaid notice, to purchase from such
Management Investor, or his heirs, executors, administrators, transferees,
successors or assigns, as the case may be, any or all of the Common Stock and/or
any or all of the Preferred Stock then owned by such Management Investor at a
purchase price equal to the Option Purchase Price (as hereinafter defined). The
Company or its designee(s) shall give notice to the terminated Management
Investor (or his heirs, executors, administrators, transferees, successors or
assigns) of its intention to purchase Securities at any time not later than 90
days after the Termination Date. (The right of the Company and its designee(s)
set forth in this Section 6.3 to purchase a terminated Management Investor's
Securities is hereinafter referred to as the "Purchase Option"). As a condition
to purchasing a Management Investor's Securities pursuant to this Section 6.3,
any designee(s) selected by the Board of Directors must agree in writing to
assume the Company's obligations under Section 6.3(a)(iii). A designee's
agreement to assume such obligation will relieve the Company of its obligations
under Section 6.3(a)(iii) with regard to the particular terminated Management
Investor and such Management Investor shall thereafter have no recourse against
the Company under Section 6.3(a)(iii).
(i) Exercise of Purchase Option. The Purchase Option shall
be exercised by written notice to the terminated Management Investor (or his
heirs, executors, administrators, transferees, successors or assigns) signed by
an officer of the Company on behalf of the Company or by its designee(s), as the
case may be. Such notice shall set forth the number of shares of Common Stock
and Preferred Stock desired to be purchased and shall set forth a time and place
of closing which shall be no earlier than 10 days and no later than 60 days
after the date such notice is sent. At such closing, the seller shall deliver
the certificates evidencing the number of shares of Common Stock and Preferred
Stock to be purchased by the Company and/or its designee(s), accompanied by
stock powers duly endorsed in blank or duly executed instruments of transfer,
and any other documents that are necessary to transfer to the Company and/or its
designee(s) good title to such of the Securities to be transferred, free and
clear of all pledges, security interests, liens, charges, encumbrances,
equities, claims and options of whatever nature other than those imposed under
this Agreement, and concurrently with such delivery, the Company and/or its
designee(s) shall deliver to the seller the full amount of the Option Purchase
Price for such Securities in cash by certified or bank cashier's check.
(ii) Option Purchase Price.
(A) Twenty percent of the Securities acquired by the
Management Investors pursuant to this Agreement shall vest on each anniversary
of the Recapitalization Date beginning on the first anniversary and ending on
the fifth anniversary. To the extent the Securities have vested they are
sometimes referred to herein as "Vested"; to the extent the Securities have not
vested they are sometimes referred to herein as "Unvested."
(B) Subject to Section 6.3(a)(iv) below, if the
Management Investor shall be terminated by the Company without Cause or shall
cease to be employed by the Company by reason of death, normal retirement at age
65 or more under the
- 18 -
Company's normal retirement policies, or temporary or permanent disability, the
"Option Purchase Price" for the Securities to be purchased from such Management
Investor pursuant to the Purchase Option shall equal the sum of (w), (x), (y)
and (z), where:
(w) is the product of the Adjusted Cost Price for the Unvested Common Stock
being purchased and the number of Unvested Common Stock being purchased;
(x) is the product of the Repurchase Price for the Vested Common Stock being
purchased and the number of Vested Common Stock being purchased;
(y) is the product of the Adjusted Cost Price for the Unvested Preferred Stock
being purchased and the number of Unvested Preferred Stock being purchased;
(z) is the product of the Repurchase Price for the Vested Preferred being
purchased and the number of Vested Preferred Stock being purchased.
(C) Notwithstanding anything to the contrary contained
herein (but subject to Section 6.3(a)(iv) below), if the Management Investor
shall cease to be employed by the Company for any reason other than those set
forth in Section 6.3(a)(ii)(B) (including, but not limited to, termination for
Cause), the Option Purchase Price for each type of Security to be purchased from
the Management Investor pursuant to the Purchase Option shall be calculated
based solely upon the Adjusted Cost Price for each type of Security being
purchased (and not the Repurchase Price).
(D) As used herein:
(x) "Adjusted Cost Price" for (i) shares of Common
Stock shall be $10 per share (including any shares of Common Stock
which have been converted into other shares of capital stock of the
Company, and adjusted for any stock dividend payable upon, or
subdivision or combination of, the Common Stock), and (ii) shares of
Preferred Stock shall be $10 per share; and
(y) "Repurchase Price" for (i) shares of Common
Stock means the consolidated net worth of the Company per common share
(adjusted to reflect the pro forma exercise in full of any dilutive
securities, regardless of whether such securities are exercisable at
the time or would otherwise satisfy any requirements under generally
accepted accounting principles as they relate to the determination of
"dilutive securities") reflected in the Company's consolidated
financial statements as of the end of the fiscal quarter immediately
preceding the Termination Date (as hereinafter defined); provided,
however, that in reflecting the pro forma exercise of dilutive
securities no amount shall be added to the consolidated net worth of
the Company on account of the assumed exercise of dilutive securities
that is in excess, on a per share basis, of the consolidated net worth
per share of the Company calculated without regard to the exercise of
any dilutive securities; and provided, further, that if any of the
Common Stock is traded on a national securities exchange or reported
on the National Association of Securities Dealers, Inc. Automated
Quotation System, then the "Repurchase Price" shall equal for each
Common Stock the closing price
- 19 -
per common share on such exchange or as so reported on the Management
Investor's Termination Date, and (ii) shares of Preferred Stock means
$10, plus the amount of any accrued, unpaid dividends on such shares.
(iii) Adjustments to Option Purchase Price. If the Company
or its designee exercises the Purchase Option with respect to any or all of the
Common Stock of any Management Investor whose employment with the Company was
terminated by the Company without Cause (the "Called Shares"), and if within
twelve months after the closing pursuant to such exercise of the Purchase Option
by the Company or its designee:
(A) the Company is merged into, consolidated with or otherwise
combined with or acquired by another person or entity, or there is a
liquidation of the Company, or there is a Public Offering (a
"Subsequent Offering") of the Company's Common Stock pursuant to an
effective registration statement under the Securities Act in which
other Management Investors participate as selling stockholders (other
than (1) a Special Registration Statement (as hereinafter defined) or
(2) a registration statement relating to a Unit Offering (as
hereinafter defined)), and
(B) the per share consideration received by the holders of Common
Stock in such transaction, or the per share net proceeds received by
the Management Investors for the Company's Common Stock in the
Subsequent Offering, as the case may be (in each case after being
adjusted downward to reflect what the per share consideration or per
share net offering proceeds, as the case may be, would have been had
the Shares of such terminated Management Investor purchased by the
Company or its designee pursuant to the Purchase Option been
outstanding on the date of the closing of such transaction or
Subsequent Offering) exceeds the Repurchase Price for shares of Common
Stock used in calculating the Option Purchase Price pursuant to the
exercise of the Purchase Option,
then such Management Investor shall be entitled to receive from the Company or
its designee an amount per share equal to such excess multiplied by the
applicable Repurchase Price Percentage (as hereinafter defined) within 30 days
after the closing of any such transaction or Subsequent Offering.
As used herein:
"Special Registration Statement" means (i) a registration statement on
Forms S-8 or S-4 or any similar or successor form or any other registration
statement relating to an exchange offer or an offering of securities solely to
the Company's (or any of its subsidiary's) employees or security holders or (ii)
a registration statement registering a Unit Offering; and
"Unit Offering" shall mean a Public Offering of a combination of debt
and equity securities of the Company in which (i) not more than 10% of the gross
proceeds received from the sale of such securities is attributed to such equity
securities, and (ii) after giving effect to such offering, the Company does not
have a class of equity securities required to be registered under the Exchange
Act.
- 20 -
(iv) Sale in Public Offering. Common Stock sold in a Public
Offering will be sold free of the restrictions contained in this Article VI, but
this Article VI shall continue to apply in accordance with its terms to all
Common Stock not sold in such offering. If less than all of a Management
Investor's shares of Common Stock are sold in such an offering, for purposes of
any subsequent calculation hereunder of Option Purchase Price, the Option
Purchase Price shall equal the sum of (x), (y) and (z), where:
(x) equals (I) the product of the Adjusted Cost Price for the Common Stock being
purchased, the Adjusted Cost Price Percentage and the Adjusted Purchase Number,
plus (II) the product of the Repurchase Price for the Common Stock being
purchased, the Repurchase Price Percentage and the Adjusted Purchase Number,
less (III) the product of the Publicly-Sold Stock (as hereinafter defined) and
the Repurchase Price for the Common Stock being purchased;
(y) is the product of the Adjusted Cost Price for the Unvested Preferred Stock
being purchased and the number of Unvested Preferred Stock being purchased; and
(z) is the product of the Repurchase Price for the Vested Preferred being
purchased and the number of Vested Preferred Stock being purchased. For purposes
of this Agreement:
(A) "Publicly-Sold Stock" means the total number of
shares of Common Stock previously sold by the respective Management Investor in
a public offering;
(B) "Purchase Number" means the number of shares of
Common Stock to be purchased from the Management Investor;
(C) "Adjusted Purchase Number" means the sum of the
Purchase Number and the Publicly-Sold Stock;
(D) "Repurchase Price Percentage" means 20% multiplied
by the number of full years elapsed since the Recapitalization Date; and
(E) "Adjusted Cost Price Percentage" means 100% minus
the Repurchase Price Percentage.
Notwithstanding the foregoing, the Option Purchase Price for any portion of
Common Stock at all times shall equal or exceed the product of the Adjusted Cost
Price and the Purchase Number.
(b) Company's Right of First Refusal. In the event that, on or
prior to the fifth anniversary of the Recapitalization Date, (i) a Management
Investor is no longer employed by the Company; (ii) the Company or its designee
has declined to exercise the Purchase Option with respect to any of such
Management Investor's Common Stock and Preferred Stock; and (iii) the Management
Investor thereafter proposes to sell any or all of such Common Stock and
Preferred Stock to a third party in a bona fide transaction, the Management
Investor may not Transfer such Securities without first offering to sell such
Securities to the Company pursuant to this Section 6.3(b).
- 21 -
The Management Investor shall deliver a written notice (a "Sale
Notice") to the Company describing in reasonable detail the Securities being
offered, the name of the offeree, the purchase price requested and all other
material terms of the proposed Transfer. Upon receipt of the Sale Notice, the
Company, or a designee selected by a majority of the non-employee members of the
Board of Directors of the Company, shall have the right and option to purchase
all or any portion of the Securities being offered at the price and on the terms
of the proposed Transfer set forth in the Sale Notice. Within 30 days after
receipt of the Sale Notice, the Company shall notify such Management Investor
whether or not it wishes to purchase any or all of the offered Securities.
If the Company elects to purchase any of the offered Securities, the
closing of the purchase and sale of such Securities shall be held at the place
and on the date established by the Company in its notice to the Management
Investor in response to the Sale Notice, which in no event shall be less than 10
or more than 60 days from the date of such notice. In the event that the Company
does not elect to purchase all the offered Securities, the Management Investor
may, subject to the other provisions of this Agreement, Transfer the remaining
offered Securities to the offeree specified in the Sale Notice at a price no
less than the price specified in the Sale Notice and on other terms no more
favorable to the transferee(s) thereof than specified in the Sale Notice during
the 180-day period immediately following the last date on which the Company
could have elected to purchase the offered Securities. Any such Securities not
transferred within such 180-day period will be subject to the provisions of this
Section 6.3(b) upon subsequent Transfer.
6.4 Involuntary Transfers. In the event that the Securities owned by
any Management Investor shall be subject to sale or other Transfer (the date of
such sale or transfer shall hereinafter be referred to as the "Transfer Date")
on or prior to the fifth anniversary of the Recapitalization Date by reason of
(i) bankruptcy or insolvency proceedings, whether voluntary or involuntary, or
(ii) distraint, levy, execution or other involuntary Transfer, then such
Management Investor shall give the Company written notice thereof promptly upon
the occurrence of such event stating the terms of such proposed Transfer, the
identity of the proposed transferee, the price or other consideration, if
readily determinable, for which the Securities are proposed to be transferred,
and the number of shares of Common Stock and Preferred Stock to be transferred.
After its receipt of such notice or, failing such receipt, after the Company
otherwise obtains actual knowledge of such a proposed Transfer, the Company, or
a designee selected by a majority of the non-employee members of the Board of
Directors of the Company, shall have the right and option to purchase all, but
not less than all of such Securities which right shall be exercised by written
notice given by the Company to such proposed transferor within 60 days following
the Company's receipt of such notice or, failing such receipt, the Company's
obtaining actual knowledge of such proposed Transfer. Any purchase pursuant to
this Section 6.4 shall be at the price and on the terms applicable to such
proposed Transfer. If the nature of the event giving rise to such involuntary
Transfer is such that no readily determinable consideration is to be paid for
the Transfer of the Securities, the price to be paid by the Company shall be the
Option Purchase Price that would have been applicable hereunder had the
Management Investor incurred a Termination Date as of the date of such proposed
Transfer for the Securities. The closing of the purchase and sale of Securities
shall be held at the place and the date to be established by the Company, which
in no event shall be less than 10 or more than 60 days from the date on which
the Company gives notice of its election to purchase the
- 22 -
Securities. At such closing, the Management Investor shall deliver the
certificates evidencing the number of shares of Common Stock and Preferred Stock
to be purchased by the Company, accompanied by stock powers duly endorsed in
blank or duly executed instruments of transfer, and any other documents that are
necessary to transfer to the Company good title to such of the securities to be
transferred, free and clear of all pledges, security interests, liens, charges,
encumbrances, equities, claims and options of whatever nature other than those
imposed under this Agreement, and concurrently with such delivery, the Company
shall deliver to the Management Investor the full amount of the purchase price
for such Securities in cash by certified or bank cashier's check.
6.5 Proceeds Upon Sale of the Company.
Each Management Investor agrees, subject solely to the condition set
forth in the last sentence of this Section 6.5, that a portion of the proceeds
of any sale of Common Stock pursuant to Article IV equal to (x) multiplied by
(y) (such portion being the "Escrow Amount"), where (x) equals (i) the aggregate
of the total amount of such proceeds and all proceeds received by such
Management Investor upon sales of Common Stock pursuant to Article IV less (ii)
the Adjusted Cost Price for shares of Common Stock multiplied by all Common
Stock owned by such Management Investor, and (y) equals the then applicable
Adjusted Cost Price Percentage, shall not be paid to such Management Investor
and shall instead be deposited into a trust for the exclusive benefit of the
Management Investors, unless and until there is an event of forfeiture related
to such Management Investor (as hereinafter defined), in which case the funds
subject to such forfeiture shall be paid to the Company. For purposes of this
Agreement, such trust shall be established in accordance with such agreements
and instruments as shall be reasonably required by the Board of Directors of the
Company and shall permit the trustee thereunder to invest the funds of such
trust in such manner, consistent with such trustee's fiduciary obligations, as
such trustee shall reasonably determine. The trust agreement shall provide that
the assets of the trust shall not be subject to the claims of the Company or any
successor to the Company. Upon the occurrence of each date on which a subsequent
adjustment of the Adjusted Cost Price Percentage would have occurred, the
trustee shall distribute to each Management Investor the amount which thereupon
becomes distributable based on such reduced percentage; provided, however, that
in the event that the employment of the Management Investor is terminated by the
Company (or any of its subsidiaries) or any of their respective successors
without Cause or by reason of death, disability or retirement at age 65 or more
under the Company's (or any of its subsidiary's) normal retirement policies, the
trustee shall promptly pay all remaining funds held for the account of such
Management Investor, together with interest accrued thereon, to such Management
Investor, or to his heirs, administrators, or estate. In the event that the
Management Investor shall cease to be employed by the Company (or any of its
subsidiaries) or any of their respective successors or a subsidiary thereof
(other than by reason of an approved leave of absence) for any reason other than
death, disability or retirement at age 65 or more under the Company's normal
retirement policies or termination by the Company or a subsidiary thereof
without Cause, all interest of the Management Investor in such funds shall
immediately terminate. A Management Investor shall not be bound by the
provisions of this Section 6.5 unless the purchaser or purchasers agree in
writing to continue such Management Investor's employment through the period
ending on the fifth anniversary of the Recapitalization Date (or, if earlier, on
the date which is eighteen months after the closing of such sale) on terms and
- 23 -
conditions at least as favorable, in the aggregate, to the Management Investor
as the terms and conditions of his employment prior to the sale.
6.6 Non-Compete.
(a) In consideration of the opportunity to participate in the
equity offering of the Company, each Management Investor covenants and agrees
that, for one (1) year after termination of such Management Investor's
employment with the Company or any its subsidiaries, neither Management Investor
nor any of its affiliates shall engage, directly or indirectly, in lines of
business similar to the business of the Company (or any of its subsidiaries)
anywhere in the world. Each Management Investor and the Company agrees that the
foregoing covenant is intended to prohibit each Management Investor from
engaging in such activities, as the case may be, as owner, creditor (except as a
trade creditor in the ordinary course of business), partner, stockholder,
lender, officer, director, manager, employee, contractor or agent for any
person, firm or corporation (except (i) with respect to the Company (or any of
its subsidiaries ) or (ii) as a holder of equity or debt securities in a
corporation which has a class of whose securities that are publicly traded on a
stock exchange or the recognized over-the-counter market, and then only to the
extent of owning not more than two percent (2%) of the issued and outstanding
debt or equity securities of such corporation).
(b) Each Management Investor acknowledges and agrees that the
remedy at law for any breach, or threatened breach, of any of the provisions of
this Section 6.6 will be inadequate and, accordingly, each Management Investor
covenants and agrees that the Company shall, in addition to any other rights and
remedies which the Company may have, be entitled to equitable relief, including
injunctive relief, and to the remedy of specific performance with respect to any
breach or threatened breach of such covenant, as may be available from any court
of competent jurisdiction. Such right to obtain equitable relief may be
exercised, at the option of the Company, concurrently with, prior to, after, or
in lieu of, the exercise of any other rights or remedies which the Company may
have as a result of any such breach or threatened breach.
(c) In the event that the provisions of this Section 6.6 shall be
determined by a court of competent jurisdiction to be unenforceable under
applicable law as to that jurisdiction (the parties agreeing that such decision
shall not be binding, res judicata or collateral estoppel in any other
jurisdiction) for any reason whatsoever, then any such provision or provisions
shall not be deemed void, but the parties hereto agree that said limits may be
modified by the court and that said covenant contained in this Section 6.6 shall
be amended in accordance with said modifications, it being specifically agreed
by each Management Investor and the Company that it is their continuing desire
that this covenant be enforced to the full extent of its terms and conditions or
if a court finds the scope of the covenant unenforceable, the court should
redefine the covenant so as to comply with applicable law.
- 24 -
ARTICLE VII
REGISTRATION RIGHTS
The holders of Common Stock shall have registration rights with
respect to the Common Stock as set forth in the Registration Rights Agreement,
dated the date hereof, by and among the Company, CVC and other parties listed
thereto attached hereto as Exhibit C (the "Registration Rights Agreement"). Each
of the holder of Common Stock agrees not to effect any public sale or
distribution of any securities of the Company during the periods specified in
the Registration Rights Agreement, except as permitted by the Registration
Rights Agreement, and each such holder agrees to be bound by the rights of
priority to participate in offerings as set forth therein.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendment and Modification. This Agreement may be amended or
modified, or any provision hereof may be waived, provided that such amendment or
waiver is set forth in a writing executed by (i) the Company, (ii) CVC (so long
as CVC and its Affiliates own in the aggregate at least 25% of the outstanding
Common Stock on a fully diluted basis) and (iii) the holders of a majority of
the outstanding Common Stock on a fully diluted basis (including Shares owned by
CVC and its Affiliates); provided, however, that the provisions of Sections 3.4,
4.2, 4.4, 4.5, 4.6, 4.7, 4.8, 5.2, 5.3, 5.4, 5.5, 5.6 and Article VIII cannot be
amended, modified or waived in a way that adversely affects the rights of the
Continuing Investors unless the holders of a majority of the Common Stock then
owned by the Continuing Investors also executes such amendment, modification or
waiver; provided, further, that Sections 3.4, 4.4, 4.5, 4.6, 4.7 and 4.8 and
Article VII may be amended, modified or waived pursuant to a writing executed in
accordance with clauses (i), (ii) and (iii) of this Section in order to allow
for additional shareholders of the Company to be bound by the provisions
thereof. No course of dealing between or among any persons having any interest
in this Agreement will be deemed effective to modify, amend or discharge any
part of this Agreement or any rights or obligations of any person under or by
reason of this Agreement.
8.2 Survival of Representations and Warranties. All representations,
warranties, covenants and agreements set forth in this Agreement will survive
the execution and delivery of this Agreement and the date hereof and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by an Investor or on its behalf.
8.3 Successors and Assigns; Entire Agreement. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs. This Agreement sets forth the entire
agreement and understanding among the parties as to the subject matter hereof
and merges and supersedes all prior discussions and understandings of any and
every nature among them.
- 25 -
8.4 Separability. In the event that any provision of this Agreement or
the application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
8.5 Notices. All notices provided for or permitted hereunder shall be
made in writing by hand-delivery, registered or certified first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery to the other
party at the following addresses (or at such other address as shall be given in
writing by any party to the others):
If to the Company to:
FabriSteel Holdings, Inc.
00000 Xxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: President
with required copies to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
If to CVC, to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
with a required copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
- 26 -
If to the Xxxxxxx Group to:
Xxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000-0000
with a required copy to:
Miller, Canfield, Paddock and Stone, P.L.C.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: 000-000-0000
If to the Im'Oberstag Group to:
Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
with a required copy to:
Miller, Canfield, Paddock and Stone, P.L.C.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: 000-000-0000
If to the Management Investors, the Continuing Investors, or any of
them, or any other Investors, to their addresses as listed in the books of the
Company.
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
8.6 Governing Law. The validity, performance, construction and effect
of this Agreement shall be governed by and construed in accordance with the
internal law of Delaware, without giving effect to principles of conflicts of
law.
8.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
- 27 -
8.8 Counterparts. This Agreement may be executed in two or more
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same instrument.
8.9 Further Assurances. Each party shall cooperate and take such
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
8.10 Termination. Unless sooner terminated in accordance with its
terms, this Agreement shall terminate on the fifteenth anniversary of the
Closing Date.
8.11 Remedies. In the event of a breach or a threatened breach by any
party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The parties
agree that the provisions of this Agreement shall be specifically enforceable,
it being agreed by the parties that the remedy at law, including monetary
damages, for breach of such provision will be inadequate compensation for any
loss and that any defense in any action for specific performance that a remedy
at law would be adequate is waived.
8.12 Party No Longer Owning Securities. If a party hereto ceases to
own any Securities, such party will no longer be deemed to be an Investor or
Management Investor for purposes of this Agreement, except that such party will
continue to be obligated to reacquire Securities Transferred to a Permitted
Transferee as required by Section 3.4(a) and will be deemed to be an Investor
and/or a Management Investor at such time as such party reacquires such
Securities.
8.13 No Effect on Employment. Nothing herein contained shall confer on
any Management Investor the right to remain in the employ of the Company or any
of its subsidiaries or Affiliates.
8.14 Pronouns. Whenever the context may require, any pronouns used
herein shall be deemed also to include the corresponding neuter, masculine or
feminine forms.
8.15 Signatures. While there are signature pages attached to this
Agreement, this Agreement shall be binding upon each Investor whether or not any
such Investor has executed this Agreement.
- 28 -
IN WITNESS WHEREOF, the parties hereto have executed this Securities
Purchase and Holders Agreement the day and year first above written.
FABRISTEEL HOLDINGS, INC.
By: /s/ Xxx X. Xxx
------------------------------------
Xxx X. Xxx
Its: President
CITICORP VENTURE CAPITAL LTD.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Its: Vice President
MANAGEMENT INVESTORS:
/s/ Xxx X. Xxx
----------------------------------------
Xxx X. Xxx
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Social Security Number: ###-##-####
/s/ Xxxx X. XxxXxxxxxx
----------------------------------------
Xxxx X. XxxXxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Social Security Number: ###-##-####
/s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Social Security Number: ###-##-####
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
00000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
- 29 -
Social Security Number: ###-##-####
/s/ Xxxx X. Xxxxx
----------------------------------------
Xxxx X. Xxxxx
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Social Security Number: ###-##-####
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
0000 Xxxxxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Social Security Number: ###-##-####
CONTINUING INVESTORS:
Xxxxx X. Xxxxxxx Children's Trust
#1 UTA DTD 12-16-76
FBO Xxxxxxxxx X. Xxxxxxx
(EIN #38-636-4786)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
Xxxxx X. Xxxxxxx Children's Trust
#5 UTA DTD 12-16-76
FBO Xxxxxx X. Xxxxxxx (EIN #38-636-4774)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
- 30 -
Xxxxx X. Xxxxxxx Children's Trust UTA
#4 DTD 12-16-76
FBO Xxxxx X. Xxxxxxx (EIN #38-636-4789)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
Xxxxx X. Xxxxxxx Children's Trust
#3 UTA DTD 12-16-76
FBO Xxxxx X. Xxxxxxx (EIN # 38-636-4791)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
Xxxxx X. Xxxxxxx Children's Trust
#2 UTA DTD 12-16-76
FBO Xxxxxxx X. Xxxxxxx
(EIN #38-636-4788)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
Xxxxxxx X. Xxxxxxx Revocable Living
Trust Dated May 21, 1990, as Amended
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx, Co-Trustee
SS# ###-##-####
----------------------------------------
Xxxxxxx Xxxxxxx, Co-Trustee
- 31 -
Xxxx X. Xxxxxxx, XX Revocable Living
Trust, dated June 5, 1990
/s/ Xxxx X. Xxxxxxx, XX
----------------------------------------
Xxxx X. Xxxxxxx, XX, Trustee
SS# ###-##-####
Xxxxxxx X. Xxxxxxx Revocable Living
Trust dated May 16, 1991, as Amended
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx, Co-Trustee
SS# ###-##-####
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx, Co-Trustee
Xxxxx X. Xxxxxxx Irrevocable Stock Trust
#5 FBO Xxxxxx X. Xxxxxxx-Xxxxxxxxx,
dated May 15, 1990 (EIN #38-657-5883)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
Xxxxx X. Xxxxxxx Irrevocable Stock Trust
#4 FBO Xxxxx X. Xxxxxxx, dated May 15,
1990 (EIN #38-657-5881)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
- 32 -
Xxxxx X. Xxxxxxx Irrevocable Stock Trust
#3 FBO Xxxxx X. Xxxxxxx, dated May 15,
1990 (EIN #38-657-5880)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
Xxxxx X. Xxxxxxx Irrevocable Stock Trust
#2 FBO Xxxxxxxxx X. Xxxxxx, dated May
15, 1990 (EIN #38-657-5879)
----------------------------------------
Key Trust Company, Co-Trustee
----------------------------------------
Xxxxx X. Xxxx, Co-Trustee
/s/ Xxxxxxxx Xxx Xxxxxxxx
----------------------------------------
Xxxxxxxx Xxx Xxxxxxxx
SS# ###-##-####
Xxxxxx X. Xxxxxx Living Trust Agreement,
dated October 4, 1989
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, Trustee
SS# ###-##-####
- 33 -
/s/ Xxxxxxx X. X. Xxxxx
----------------------------------------
Xxxxxxx X. X. Xxxxx
SS# ###-##-####
Xxxx X. Xxxxxxxxx Living Trust Agreement
dated February 23, 1991
/s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxx, Trustee
SS# ###-##-####
Xxxxxxxxx X. Xxxxxxxx Living Trust
dated June 29, 1993 (EIN# 00-0000000)
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx, Co-Trustee
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Comerica Bank, Co-Trustee
Xxxxxxxx X. Xxxxxxx Living Trust, dated
December 14, 1966, and any amendments
thereto
/s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxxxx, sole Trustee
SS# ###-##-####
Xxxxx X. Xxxxxxx Living Trust, dated
December 14, 1966, and any amendments
thereto
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, sole Trustee
SS# ###-##-####
- 34 -
OTHER INVESTORS
CCT PARTNERS, V, LP
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary, CCT 1998
Corporation, GP of CCT Partners V,
L.P.
63 BR PARTNERSHIP
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Attorney-In-Fact
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
- 35 -
ALCHEMY L.P.
By: /s/ [illegible]
------------------------------------
Name: [illegible]
Title: General Partner
Xxxxxx X. XxXxxxxxxx Xxxxx Trust dated
October 27, 1998
/s/ Xxxxxx Blastberg
----------------------------------------
Xxxxxx Blastberg, Trustee
/s/ Xxxxx Xxxx
----------------------------------------
Xxxxx Xxxx
/s/ Xxxxx Xxxxx
----------------------------------------
Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
/s/ M. Xxxxxx Xxxxxxxx
----------------------------------------
M. Xxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
- 36 -
BG PARTNER LLP
By: /s/ Xxxx X. Xxxxxx XX
------------------------------------
Name: Xxxx X. Xxxxxx XX
Title: Authorized Signatory and
General Partner
/s/ Xxx X. Xxxxxx
----------------------------------------
Xxx X. Xxxxxx
- 37 -
Schedule I
Continuing Investors
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Childen's Trust
UTA DTD 12-16-76 FBO Xxxxxxxxx X. Xxxxxxx
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Childen's Trust
UTA DTD 12-16-76 FBO Xxxxxx X. Xxxxxxx
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Childen's Trust
UTA DTD 12-16-76 FBO Xxxxx X. Xxxxxxx
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Childen's Trust
UTA DTD 12-16-76 FBO Xxxxx X. Xxxxxxx
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Childen's Trust
UTA DTD 12-16-76 FBO Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Co-Trustee of the
Xxxxxxx X. Xxxxxxx Revocable Living Trust
Dated May 21, 1990, as Amended
Xxxx X. Xxxxxxx, XX, Trustee of the
Xxxx X. Xxxxxxx, XX Revocable Living Trust
Dated June 5, 1990
Xxxxxxx X. Xxxxxxx, Co-Trustee of the
Xxxxxxx X. Xxxxxxx Revocable Living trust
dated May 16, 1991, as Amended
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Irrevocable Stock Trust
FBO Xxxxxx X. Xxxxxxx-Xxxxxxxxx,
dated May 15, 1990
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Irrevocable Stock Trust
FBO Xxxxx X. Xxxxxxx, dated May 15, 1990
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Irrevocable Stock Trust
FBO Xxxxx X. Xxxxxxx, dated May 15, 1990
- 38 -
Key Trust Company and Xxxxx X. Xxxx, Co-Trustees of the
Xxxxx X. Xxxxxxx Irrevocable Stock Trust
FBO Xxxxxxxxx X. Xxxxxx dated May 15, 1990
Xxxxxxxx Xxx Xxxxxxxx
Xxxxxx X. Xxxxxx, Trustee of the
Xxxxxx X. Xxxxxx Living Trust Agreement,
dated October 4, 1989
Xxxxxxx X. X. Xxxxx
Xxxx X. Xxxxxxxxx, Trustee of the
Xxxx X. Xxxxxxxxx Living Trust Agreement
dated February 23, 1991
Xxxxxx X. Xxxxxxxx and Comerica Bank,
Co-Trustees of the Xxxxxxxxx X. Xxxxxxxx
Living Trust dated June 29, 1993
Xxxxxxxx X. Xxxxxxx, Sole Trustee of the
Xxxxxxxx X. Xxxxxxx Living Trust, dated
December 14, 1966, and any amendments thereto
Xxxxx X. Xxxxxxx, Sole Trustee of the
Xxxxx X. Xxxxxxx Living Trust, dated
December 14, 1966, and any amendments thereto
- 39 -
Schedule II
Management Investors
Xxx X. Xxx
Xxxx XxxXxxxxxx
Xxxxx X. Xxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxxxxx Xxxxxxxxx
- 40 -
Schedule III
Other Investors
CCT Partners V, LP
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxxx
63 BR Partnership
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Alchemy L.P.
Xxxxxx Blastberg, Trustee of the Xxxxxx X.
XxXxxxxxxx Xxxxx Trust dated 10/27/98
Xxxxx Xxxx
Xxxxx Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxx
X. Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
BG Partner LLP
Xxx X. Xxxxxx
- 41 -
Schedule IV
[Intentionally omitted.]
- 42 -
Schedule V
Shares
FABRI-STEEL HOLDINGS, INC. CAPITALIZATION
------------------------------------------------------------------------------------------------------------------------
Class A Class B Series A Series B Series C Series D Series E Series F
Common Common Preferred Preferred Preferred Preferred Preferred Preferred
Shareholder Stock Stock Stock Stock Stock Stock Stock Stock
------------------------------------------------------------------------------------------------------------------------
Citicorp Venture Capital,
Ltd. 33,203 *1,584,576 467,513 369,957
------------------------------------------------------------------------------------------------------------------------
CCT Partners V, LP 5,859 14,617 81,548 65,287
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 845 2,107 11,759 9,412
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx 552 1,377 7,689 6,150
------------------------------------------------------------------------------------------------------------------------
63 BR Partnership 476 1,188 6,619 5,307
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxx 476 1,188 6,619 5,307
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 476 1,188 6,619 5,307
------------------------------------------------------------------------------------------------------------------------
Alchemy L.P. 476 1,188
------------------------------------------------------------------------------------------------------------------------
Xxxxxx Blastberg, Trustee
of the Xxxxxx X.
XxXxxxxxxx Flint Trust
dated 10/27/98 6,619 5,307
------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxx 325 811 4,523 3,621
------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx 163 405 2,261 1,811
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx 163 405 2,261 1,811
------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxx 163 405 2,261 1,811
------------------------------------------------------------------------------------------------------------------------
M. Xxxxxx Xxxxxxxx 65 161 905 719
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxx 65 161 905 719
------------------------------------------------------------------------------------------------------------------------
BG Partner LLP 65 161 905 719
------------------------------------------------------------------------------------------------------------------------
Xxx X. Xxxxxx 33 80 452 359
------------------------------------------------------------------------------------------------------------------------
Xxx X. Xxx 7,800 11,860 7,419
------------------------------------------------------------------------------------------------------------------------
Xxxx X. XxxXxxxxxx 2,600 3,948 2,478
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxx 250 790
------------------------------------------------------------------------------------------------------------------------
----------
* 641,202 Shares are deposited in escrow for resale to other shareholders
pursuant to the Preemptive Rights Escrow Agreement dated March 17, 2000, by
and among the Company, Citicorp Venture Capital, Ltd. and the Escrow Agent
named therein.
- 43 -
------------------------------------------------------------------------------------------------------------------------
Class A Class B Series A Series B Series C Series D Series E Series F
Common Common Preferred Preferred Preferred Preferred Preferred Preferred
Shareholder Stock Stock Stock Stock Stock Stock Stock Stock
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx 250 790
------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxx 250 790
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxxxxxx 1,321 9,474
------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxx Xxxxxxxx 4,002 65,595 18,950 11,005.5
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X.X. Xxxxx 4,002 65,595 18,950 11,005.5
------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxxxx, as
Trustee under the Xxxx X.
Xxxxxxxxx Living Trust
Agreement Dated 23, 1991 4,002 65,595 18,950 11,005.5
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx and
Comerica Bank, as
Co-Trustee of the
Xxxxxxxxx X. Xxxxxxxx
Living Trust dated
June 29, 1993 4,002 65,595 18,950 11,005.5
------------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx, as
Trustee under the Xxxxxx
X. Xxxxxx Living Trust
Agreement Dated October
4, 1989 4,000 65,595 18,950 11,000
------------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx, Sole
Trustee under the Xxxxx
X. Xxxxxxx Living Trust,
Dated December 14, 1966,
and any amendments
thereto 2,076 34,028 9,830 5,709
------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxxx, sole
Trustee under the
Xxxxxxxx X. Xxxxxxx
Living Trust, dated
December 14, 1966, and
any amendments thereto 2,060 33,787 9,760 5,665
------------------------------------------------------------------------------------------------------------------------
Xxxx X. Xxxxxxx, XX
Trustee of the Xxxx X.
Xxxxxxx, XX Revocable
Living Trust, Dated June
5, 1990 1,962 64,338 18,586
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx and
Xxxxxxx Xxxxxxx, as
Trustees 1,962 64,338 18,586
------------------------------------------------------------------------------------------------------------------------
- 44 -
------------------------------------------------------------------------------------------------------------------------
Class A Class B Series A Series B Series C Series D Series E Series F
Common Common Preferred Preferred Preferred Preferred Preferred Preferred
Shareholder Stock Stock Stock Stock Stock Stock Stock Stock
------------------------------------------------------------------------------------------------------------------------
of the Xxxxxxx
X. Xxxxxxx Revocable
Living Trust Dated May
21, 1990, As Amended
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-Trustee
of the Xxxxx X. Xxxxxxx
Children's Trust #1 FBO
Xxxxxxxxx X. Xxxxxxx, DTD
12/16/76 1,282 42,054 12,149
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-Trustee
of the Xxxxx X. Xxxxxxx
Children's Trust #5 FBO
Xxxxxx X. Xxxxxxx, DTD
12/16/76 1,282 42,054 12,149
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-Trustee
of the Xxxxx X. Xxxxxxx
Children's Trust #4 FBO
Xxxxx X. Xxxxxxx, DTD
12/16/76 1,282 42,054 12,149
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-Trustee
of the Xxxxx X. Xxxxxxx
Children's Trust #3 FBO
Xxxxx X. Xxxxxxx, DTD
12/16/76 1,282 42,054 12,149
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-Trustee
of the Xxxxx X. Xxxxxxx
Children's Trust #2 FBO
Xxxxxxx X. Xxxxxxx, DTD
12/16/76 1,282 42,054 12,149
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-trustee
of 1,166 38,245 11,049
------------------------------------------------------------------------------------------------------------------------
- 45 -
------------------------------------------------------------------------------------------------------------------------
Class A Class B Series A Series B Series C Series D Series E Series F
Common Common Preferred Preferred Preferred Preferred Preferred Preferred
Shareholder Stock Stock Stock Stock Stock Stock Stock Stock
------------------------------------------------------------------------------------------------------------------------
the Xxxxx X. Xxxxxxx
Irrevocable Stock Trust
#5 FBO Xxxxxx X. Xxxxxxx
DTD 5/15/1990 1,166 38,245 11,049
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-trustee
of the Xxxxx X. Xxxxxxx
Irrevocable Stock Trust
#4 FBO Xxxxx X. Xxxxxxx
DTD 5/15/1990 1,166 38,245 11,049
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-trustee
of the Xxxxx X. Xxxxxxx
Irrevocable Stock Trust
#3 FBO Xxxxx X. Xxxxxxx
DTD 5/15/1990 1,166 38,245 11,049
------------------------------------------------------------------------------------------------------------------------
Key Trust Company and
Xxxxx X. Xxxx, Co-trustee
of the Xxxxx X. Xxxxxxx
Irrevocable Stock Trust
#2 FBO Xxxxxxxxx X.
Xxxxxx DTD 5/15/1990 1,166 38,245 11,049
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx and
Xxxx X. Xxxxxxx, Trustees
of the Xxxxxxx X. Xxxxxxx
Revocable Living Trust
Dated May 16, 1991, As
Amended 680 22,284 6,437
------------------------------------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxx 42,500
------------------------------------------------------------------------------------------------------------------------
Xxx Xxxxxxx Xxxxxxx 42,500
------------------------------------------------------------------------------------------------------------------------
TOTALS: 95,698 1,610,018 910,000 900,000 559,897 83,000
====== ========= ======= ======= ======= ======
------------------------------------------------------------------------------------------------------------------------
- 46 -
Schedule VI
Xxxxxxx Group
Xxxxxxx X. Xxxxxxx, Co-Trustee of the
Xxxxxxx X. Xxxxxxx Revocable Living Trust
Dated May 21, 1990, as Amended
Xxxx X. Xxxxxxx, XX, Trustee of the
Xxxx X. Xxxxxxx, XX Revocable Living Trust
Dated June 5, 1990
Xxxxxxx X. Xxxxxxx, Co-Trustee of the
Xxxxxxx X. Xxxxxxx Revocable Living trust
dated May 16, 1991, as Amended
Xxxxxxxx X. Xxxxxxx, Sole Trustee of the
Xxxxxxxx X. Xxxxxxx Living Trust, dated
December 14, 1966, and any amendments thereto
Xxxxx X. Xxxxxxx, Sole Trustee of the
Xxxxx X. Xxxxxxx Living Trust, dated
December 14, 1966, and any amendments thereto
Im'Oberstag Group
Xxxxxxxx Xxx Xxxxxxxx
Xxxxxx X. Xxxxxx, Trustee of the
Xxxxxx X. Xxxxxx Living Trust Agreement,
dated October 4, 1989
Xxxxxxx X. X. Xxxxx
Xxxx X. Xxxxxxxxx, Trustee of the
Xxxx X. Xxxxxxxxx Living Trust Agreement
dated February 23, 1991
Xxxxxx X. Xxxxxxxx and Comerica Bank,
Co-Trustees of the Xxxxxxxxx X. Xxxxxxxx
Living Trust dated June 29, 1993
- 47 -
Exhibit A-1
FabriSteel Holdings, Inc.
Joinder
To Securities Purchase and Holders Agreement
FabriSteel Holdings, Inc.
00000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Gentlemen and Ladies:
In connection with my receipt from FabriSteel Holdings, Inc. (the "Company") of
shares of Class A Common Stock, par value $.01 per share, of the Company
-----
represented by Certificate No. and shares of % Series
----- --------- -- --
Cumulative Preferred Stock, par value $.01 per share and stated value $ per
---
share, of the Company represented by Certificate No. (collectively, the
----
"Securities"), I hereby represent and warrant to, and agree and covenant with,
you as follows:
1. By this instrument I shall be bound by the terms and conditions of
the Securities Purchase and Holders Agreement, dated as of March , 2000 (the
--
"Agreement"), among, inter alia, the Company, Citicorp Venture Capital, Ltd., a
New York corporation ("CVC"), the Continuing Investors (as defined therein) and
the other signatories thereto and agree to be a "Management Investor" as such
term is defined therein, and to be subject to the rights, duties and obligations
of a Management Investor pursuant to the terms of such Agreement.
2. I have read and understand each of the provisions of the Agreement.
3. I have full legal right, power and authority (including the due
authorization by all necessary corporate action) to enter into this Joinder and
to perform my obligations hereunder without the need for the consent of any
other person.
4. This Joinder has been duly authorized, executed and delivered and
constitutes my valid and binding obligation enforceable against me in accordance
with the terms hereof.
5. The Securities are being acquired by me solely for my own account
for investment and not with a view to any further distribution thereof that
would violate the Securities Act of 1933, as amended (the "Securities Act") or
the applicable securities laws of any state. I will not distribute the
Securities in violation of the Securities Act or the applicable securities laws
of any state.
- 48 -
6. I understand that the Securities have not been registered under the
Securities Act or registered for resale under the securities laws of any state
and must be held indefinitely unless subsequently registered under the
Securities Act and any applicable state securities laws or unless an exemption
from such registration is or becomes available.
7. I am financially able to hold the Securities for long-term
investment, I believe that the nature and amount of the Securities being
purchased are consistent with my overall investment program and financial
position, and I recognize that there are substantial risks involved in the
purchase of the Securities.
8. I confirm that (i) I am familiar with the business of the Company
and its subsidiaries, (ii) I have had the opportunity to ask questions of the
officers and directors of the Company and its subsidiaries and to obtain (and
that I have received to my satisfaction) such information about the business and
financial condition of the Company and its subsidiaries as I have reasonably
requested, and (iii) I, either alone or with my representative (as defined in
Rule 501(h) promulgated under the Securities Act), if any, have such knowledge
and experience in financial and business matters that I am capable of evaluating
the merits and risks of the prospective investment in the Securities.
9. I reside at the address set forth below the signature line to this
letter.
10. I agree that the certificates representing the Securities shall
bear the following legend or a similar legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OR STATE SECURITIES LAWS OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ALSO SUBJECT TO THE
TERMS AND CONDITIONS OF A SECURITIES PURCHASE AND HOLDERS AGREEMENT BY
AND AMONG THE COMPANY AND THE HOLDERS SPECIFIED THEREIN, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. THE
SALE, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES IS SUBJECT TO
THE TERMS OF SUCH AGREEMENT AND THE SECURITIES ARE TRANSFERABLE ONLY
UPON PROOF OF COMPLIANCE THEREWITH.
11. I agree that a notation will be made in the appropriate transfer
records of the Company with respect to the restrictions on transfer of the
Securities required under or pursuant to the Agreement.
- 49 -
12. I have executed this Joinder and declare that the information
contained herein is current, complete and accurate and may be relied upon by the
Company.
Very truly yours,
----------------------------------------
Dated: Address:
--------------------------------
----------------------------------------
SSN:
------------------------------------
- 50 -
Exhibit A-2
FabriSteel Holdings, Inc.
Joinder
To Securities Purchase and Holders Agreement
FabriSteel Holdings, Inc.
00000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Gentlemen and Ladies:
In connection with my receipt from FabriSteel Holdings, Inc. (the "Company") of
shares of Class A Common Stock, par value $.01 per share, of the Company
-----
represented by Certificate No. and shares of % Series
----- --------- -- --
Cumulative Preferred Stock, par value $.01 per share and stated value $ per
--
share, of the Company represented by Certificate No. (collectively, the
----
"Securities"), I hereby represent and warrant to, and agree and covenant with,
you as follows:
1. By this instrument I shall be bound by the terms and conditions of
the Securities Purchase and Holders Agreement, dated as of March , 2000 (the
--
"Agreement"), among, inter alia, the Company, Citicorp Venture Capital, Ltd., a
New York corporation ("CVC"), the Continuing Investors (as defined therein) and
the other signatories thereto and agree to be an "Investor" as such term is
defined therein, and to be subject to the rights, duties and obligations of an
Investor pursuant to the terms of such Agreement.
2. I have read and understand each of the provisions of the Agreement.
3. I have full legal right, power and authority (including the due
authorization by all necessary corporate action) to enter into this Joinder and
to perform my obligations hereunder without the need for the consent of any
other person.
4. This Joinder has been duly authorized, executed and delivered and
constitutes my valid and binding obligation enforceable against me in accordance
with the terms hereof.
5. The Securities are being acquired by me solely for my own account
for investment and not with a view to any further distribution thereof that
would violate the Securities Act of 1933, as amended (the "Securities Act") or
the applicable securities laws of any state. I will not distribute the
Securities in violation of the Securities Act or the applicable securities laws
of any state.
- 51 -
6. I understand that the Securities have not been registered under the
Securities Act or registered for resale under the securities laws of any state
and must be held indefinitely unless subsequently registered under the
Securities Act and any applicable state securities laws or unless an exemption
from such registration is or becomes available.
7. I reside at the address set forth below the signature line to this
letter.
8. I agree that the certificates representing the Securities shall
bear the following legend or a similar legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OR STATE SECURITIES LAWS OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ALSO SUBJECT TO THE
TERMS AND CONDITIONS OF A SECURITIES PURCHASE AND HOLDERS AGREEMENT BY
AND AMONG THE COMPANY AND THE HOLDERS SPECIFIED THEREIN, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY. THE
SALE, TRANSFER OR OTHER DISPOSITION OF THE SECURITIES IS SUBJECT TO
THE TERMS OF SUCH AGREEMENT AND THE SECURITIES ARE TRANSFERABLE ONLY
UPON PROOF OF COMPLIANCE THEREWITH.
9. I agree that a notation will be made in the appropriate transfer
records of the Company with respect to the restrictions on transfer of the
Securities required under or pursuant to the Agreement.
- 52 -
10. I have executed this Joinder and declare that the information
contained herein is current, complete and accurate and may be relied upon by the
Company.
Very truly yours,
----------------------------------------
Dated:
Address:
--------------------------------
----------------------------------------
SSN:
------------------------------------
- 53 -
Exhibit B-1
Amended and Restated Certificate of Incorporation
FabriSteel Holdings, Inc.
- 54 -
Exhibit B-2
Bylaws
FabriSteel Holdings, Inc.
- 55 -
