SUPPORT AGREEMENT
EXHIBIT
4
This SUPPORT AGREEMENT, dated as of June 1, 2007 (this
“Agreement”), by and among Wilsons The
Leather Experts Inc., a Minnesota corporation (the “Company”), and the shareholders of the Company
set forth on the signature pages hereof (individually, a “Shareholder” and collectively, the
“Shareholders”).
WHEREAS, the Company and the Shareholders have entered into
a Securities Purchase Agreement,
dated as of the date hereof (the “Securities Purchase Agreement”), pursuant to which, among other
things, the Company has agreed to issue and sell to the Shareholders and the Shareholders have
agreed severally to purchase an aggregate of (i) 45,000 shares of the Company’s Series A Preferred
Stock, par value $.01 per share (the “Preferred Stock”), and (ii) warrants (the “Warrants”) which
will be exercisable to purchase 15,000,000 shares of common stock of the Company, par value $.01
per share (the “Common Stock”) (as exercised, collectively, the “Warrant Shares”). The Preferred
Stock and the Warrants are sometimes collectively referred to herein as, the “Securities”);
WHEREAS, as of the date hereof, the Shareholders identified
on Annex A hereto (the “Current
Shareholders”) collectively own the aggregate number of shares of Common Stock set forth on Annex
A, which represent (i) approximately 56.63% of the total issued and outstanding Common Stock of the
Company, and (ii) approximately 56.63% of the total voting power of the Company;
WHEREAS, as a condition to the willingness of the
Shareholder who, prior to the closing of the
transactions contemplated by the Securities Purchase Agreement and identified as “Purchaser 1”
therein, owned no securities of the Company (such Shareholder, the “Investor”) to consummate the
transactions contemplated thereby (collectively, the “Transaction”), the parties hereto have each
agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING AGREEMENTS OF THE CURRENT SHAREHOLDERS
SECTION 1.01. Supporting the Transaction. Each of the
Current Shareholders hereby
agrees that, at any meeting of the shareholders of the Company, however called, and in any action
by written consent of the Company’s shareholders, such Current Shareholder shall vote the “Shares”
and the “Other Securities” (in each case, as defined below) held by it: (a) in favor of the
Transaction; provided that, the Preferred Stock, Shares acquired upon the conversion of the
Preferred Stock and the Warrant Shares may not be voted on the Transaction, and (b)
against any proposal or any other corporate action or agreement that would result in a breach
of any covenant, representation or warranty or any other obligation or agreement of the Company
under the Securities Purchase Agreement or which could result in any of the conditions to the
Company’s obligations under the Securities Purchase Agreement not being fulfilled. Each of the
Current Shareholders acknowledges receipt and review of a copy of the Securities Purchase Agreement
and exhibits thereto. Each of the Current Shareholders hereby revokes all proxies and powers of
attorney with respect to the Shares and the Other Securities that such Current Shareholder may have
heretofore appointed or granted, and no subsequent proxy or power of attorney shall be given or
written consent executed (and if given or executed, shall not be effective) by such Current
Shareholder, with respect to the matters specified in this Section 1.01, except as set forth in the
next paragraph of this Section 1.01. Any obligation of the Current Shareholders under this Section
1.01 shall be binding upon the successors and assigns of the Current Shareholders. The obligations
of the Current Shareholders under this Section 1.01 shall terminate immediately following the
earlier to occur of (i) the “Shareholder Approval” (as defined below), or (ii) the termination of
the Securities Purchase Agreement prior to the Closing (as defined therein).
In order to secure the performance of each Current
Shareholder’s obligations under this
Section 1.01, by entering into this Agreement, each Current Shareholder hereby irrevocably grants a
proxy appointing each managing partner of the general partner of the Investor as such Current
Shareholder’s attorney-in-fact and proxy, with full power of substitution, for and in its name, to
vote, express consent or dissent, or otherwise to utilize such voting power in the manner
contemplated by this Section 1.01 with respect to such each Current Shareholder’s Shares and Other
Securities. The proxy granted by such each Current Shareholder pursuant to this Section 1.01 is
coupled with an interest and shall be revoked automatically, without any notice or other action by
any person, upon the earlier to occur of (i) the Shareholder Approval, or (ii) the termination of
the Securities Purchase Agreement prior to the Closing (as defined therein).
As used herein, the following terms have the following meanings:
(i) “Shares” refers to all
shares of Common Stock now owned and which may hereafter be acquired by a Shareholder at any time
that this Agreement is in effect, (ii) “Other Securities” refers to any other securities, if any,
which a Shareholder is currently entitled to vote, or after the date hereof becomes entitled to
vote, at any meeting of the shareholders of the Company held at any time that this Agreement is in
effect, and (iii) “Shareholder Approval” means the requisite vote of the holders of voting stock of
the Company necessary to approve the Transaction.
SECTION 1.02. Board Representation. So long as the Investor
or one or more of its
affiliates holds at least 20% of the number of shares of Common Stock issued or issuable upon
conversion of the Preferred Stock subject to appropriate adjustment for all stock splits,
dividends, combinations, recapitalizations and the like) (the “Minimum Holding”), each of the
Current Shareholders hereby agrees that, at any meeting of the shareholders of the Company, however
called, and in any action by written consent of the Company’s shareholders, such Current
Shareholder shall vote the Shares and the Other Securities held by it: (a) in favor of at least
two nominees for election as directors identified as having been proposed by the Investor; and (b)
against any proposal or any other corporate action or agreement that would result in such nominees
not being elected as directors. Each of the Current Shareholders agrees that no
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subsequent proxy or power of attorney with respect to the Shares and the Other Securities
shall be given or written consent executed (and if given or executed, shall not be effective) by
such Current Shareholder with respect to the matters specified in this Section 1.02. Any
obligation of the Current Shareholders under this Section 1.02 shall be binding upon the successors
and assigns of the Current Shareholders.
SECTION 1.03. Certain Transactions. So long as the Investor
or one or more of its
affiliates holds at least the Minimum Holding, each of the Current Shareholders hereby agrees that,
at any meeting of the shareholders of the Company, however called, and in any action by written
consent of the Company’s shareholders, such Current Shareholder shall vote the Shares and the Other
Securities held by it: (a) in favor of any proposed “Company Sale” (as defined below) presented to
or brought before the shareholders of the Company and identified as having been proposed by or
supported by the Investor; and (b) against any proposed Company Sale that is identified as being
opposed by the Investor or would result in any other Company Sale proposed by or supported by the
Investor not being presented to or approved by the shareholders of the Company. Each of the
Current Shareholders agrees that no subsequent proxy or power of attorney with respect to the
Shares and the Other Securities shall be given or written consent executed (and if given or
executed, shall not be effective) by such Current Shareholder with respect to the matters specified
in this Section 1.03. Any obligation of the Current Shareholders under this Section 1.03 shall be
binding upon the successors and assigns of the Current Shareholders.
As used herein, “Company Sale” means one or a
series of related transactions pursuant to which
a third party or group of third parties (a) acquires (whether by merger, amalgamation,
consolidation, recapitalization, reorganization, redemption, transfer or issuance of securities or
otherwise) a majority of the capital stock of the Company (or any surviving or resulting
corporation) possessing the voting power to elect a majority of the Board of Directors of the
Company (or such surviving or resulting corporation), or (b) acquires assets constituting all or
substantially all of the assets of the Company (on a consolidated basis). For the avoidance of
doubt, the parties agree that the term “third party” as used in the immediately preceding sentence
shall not include the Investor or any of its affiliates.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE CURRENT SHAREHOLDERS
Each of the Current Shareholders hereby represents and warrants,
severally and not jointly, to
the Company and the Investor as follows:
SECTION 2.01. Authority Relative to This Agreement. The
Current Shareholder has all
necessary power and authority, including partnership power and authority, to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the Current
Shareholder and constitutes a legal, valid and binding obligation of the Shareholder, enforceable
against the Current Shareholder in accordance with its terms, except (a) as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
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moratorium or similar laws now or hereafter in effect relating to, or affecting generally, the
enforcement of creditors’ and other obligees’ rights, (b) where the remedy of specific performance
or other forms of equitable relief may be subject to certain equitable defenses and principles and
to the discretion of the court before which the proceeding may be brought, and (c) where rights to
indemnity and contribution thereunder may be limited by applicable law and public policy.
SECTION 2.02. No Conflict. (a) The execution and
delivery of this Agreement by the
Current Shareholder does not, and the performance of this Agreement by the Current Shareholder
shall not, (i) conflict with or violate the partnership agreement of the Current Shareholder or any
federal, state or local law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to the Current Shareholder or by which the Shares or the Other Securities owned by the
Current Shareholder are bound or affected or (ii) result in any breach of or constitute a default
(or an event that with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Shares or the Other Securities owned by the Current
Shareholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Current Shareholder is a party or
by which the Shareholder or the Shares or Other Securities owned by the Current Shareholder is
bound.
(b) The execution and delivery of
this Agreement by the Current Shareholder does not, and the
performance of this Agreement by the Current Shareholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental entity by the
Shareholder, except for applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the “1934 Act”).
SECTION 2.03. Title to the Stock. As of the date hereof, the
Current Shareholder is
the beneficial owner of the number of shares of Common Stock set forth opposite its name on
Appendix A attached hereto, entitled to vote, without restriction (except to the extent a
Current Shareholder shares voting power under managed accounts), on all matters brought before
holders of capital stock of the Company, which Common Stock represents on the date hereof the
percentage of the outstanding stock and voting power of the Company set forth on such Appendix.
Such Common Stock are all the securities of the Company owned, either of record or beneficially, by
the Current Shareholder. Such Common Stock is owned free and clear of all security interests,
liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Current
Shareholder’s voting rights, charges and other encumbrances of any nature whatsoever, other than
any restrictions that attach to shares deposited by a Current Shareholder with brokers in margin
accounts pursuant to standard terms of such margin account agreements. The Current Shareholder has
not appointed or granted any proxy, which appointment or grant is still effective, with respect to
the Shares or Other Securities owned by the Shareholder regarding the matters specified in Article
I hereof. The Current Shareholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Article 1 hereof, sole power of disposition and sole power to
agree to all matters set forth in this Agreement.
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ARTICLE III
COVENANTS
SECTION 3.01. No Disposition or Encumbrance of Stock. Each
of the Current
Shareholders hereby covenants and agrees that, for a period of at least 24 months after the date of
Shareholder Approval, such Current Shareholder shall not offer or agree to sell, transfer, tender,
assign, hypothecate or otherwise dispose of, grant a proxy (except (i) with respect to not more
than 25% of the Common Stock held by each Current Shareholder as of the date hereof, for any such
sales, transfers, tenders, assigns, hypothecations or other dispositions conducted in the ordinary
course of the business of such Current Shareholder consistent with past practice, and (ii) a
customary revocable proxy in connection with an annual meeting of shareholders, which proxy does
not involve the matters set forth in Article I hereof unless such proxy directs the proxy to vote
in accordance with the agreements of such Current Shareholder set forth in this Agreement) or power
of attorney with respect to, or create or permit to exist any security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on such Current Shareholder’s voting
rights, charge or other encumbrance of any nature whatsoever with respect to the Shares or Other
Securities, directly or indirectly, or initiate, solicit or encourage any person to take actions
which could reasonably be expected to lead to the occurrence of any of the foregoing.
SECTION 3.02. No Solicitation or Similar Activity. Each Current Shareholder hereby
covenants and agrees that it shall not, at any time during the term of this Agreement, directly or
indirectly, through one or more intermediaries acting on its behalf, singly or as part of a
partnership, syndicate or other group (as those terms are used within the meaning of Section
13(d)(3) of the 1934 Act), and shall cause each of its Affiliates not to, directly or indirectly,
whether through the taking of shareholder action by written consent or otherwise:
(a) instigate, support or in any way participate in any proxy contest or otherwise engage in
the “solicitation” of “proxies” (as such terms are defined in Rule 14a-1 under the 1934 Act,
whether or not such solicitation is exempt under Rule 14a-2 under the 0000 Xxx) with respect to any
matter from holders of Voting Stock (including by the execution of actions by written consent) in
opposition to proposals or matters proposed, recommended or otherwise supported by the Board of
Directors of the Company (the “Board”) or the Investor;
(b) become a participant in any contest for the election of directors with respect to the
Company or solicit any consent or communicate with or seek to advise, encourage or influence any
third party with respect to the voting of any Voting Stock; provided, however, that
such Current Shareholder shall not be prevented hereunder from being a “participant” in support of
the management of the Company by reason of the membership of such Current Shareholder’s designee on
the Board or the inclusion of such Current Shareholder’s designee on the slate of nominees for
election to the Board proposed by the Company;
(c) initiate or participate in the solicitation of, or otherwise solicit, shareholders for the
approval of one or more shareholder proposals with respect to the Company, as described in Rule
14a-8 under the Exchange Act, or induce or attempt to induce any other third party to initiate any
shareholder proposal relating to the Company;
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(d) form, join, encourage the formation of or in any way participate in a 13D Group (other
than with any other Affiliate of such Current Shareholder) for the purposes of acquiring, holding,
voting or disposing of any Voting Stock;
(e) solicit, seek or offer to effect, negotiate with or provide any confidential information
to any party with respect to, make any statement or proposal, whether written or oral, either alone
or in concert with others, to the Board, to any director or officer of the Company or to any other
shareholder of the Company with respect to, or otherwise formulate any plan or proposal or make any
public announcement, proposal, offer or filing under the Exchange Act, any similar or successor
statute or otherwise, or take action to cause the Company to make any such filing, with respect to:
(i) any form of business combination transaction or acquisition involving the Company (other than
transactions contemplated by this Agreement), including, without limitation, a merger, exchange
offer or liquidation of the Company’s assets, (ii) any form of restructuring, recapitalization or
similar transaction with respect to the Company, including, without limitation, a merger, exchange
offer or liquidation of the Company’s assets, (iii) any acquisition or disposition of assets
material to the Company, (iv) any request to amend, waive or terminate the provisions of this
Agreement or (v) any proposal or other statement inconsistent with the terms of this Agreement,
provided, however, that such Current Shareholder and its Affiliates (x) may discuss
the affairs and prospects of the Company, the status of Such Current Shareholder’s investment in
the Company and any of the matters described in clause (i) through (v) of this paragraph at any
time, and from time to time, with the Board or any director or executive officer of the Company,
(y) may discuss any matter, including any of the foregoing, with its outside legal and financial
advisors, if as a result of any such discussions such Current Shareholder is not required to make,
and does not make, any public announcement or filing under the 1934 Act otherwise prohibited by
this Agreement and (z) may discuss non-confidential information regarding the Company with any
third parties so long as such Current Shareholder promptly informs the Board of such discussions;
(f) seek the removal of any of the Board’s directors (other than any designee of such
Current
Shareholder);
(g) seek to increase the number of directors serving on the Board above 11 or to increase the
number of such Current Shareholder’s representatives or designees on the Board above one;
(h) call or seek to have called any meeting of the shareholders of the Company; or
(i) assist, instigate or encourage any third party to take any of the actions enumerated in
this Section 3.02.
SECTION 3.03. Non-Disparagement. Each Current Shareholder
hereby covenants and
agrees that, during the term of this Agreement, such Current Shareholder shall not make, and will
use its reasonable efforts to prevent anyone acting on its behalf from making, any public statement
or representation, or otherwise communicate, directly or indirectly, in writing, orally, or
otherwise, with parties outside of the Company, or otherwise take any action which may, directly or
indirectly, publicly disparage or be damaging to (a) the Investor or (b) the
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business strategies adopted by the Board of Directors of the Company and the implementation
thereof by Company management.
SECTION 3.04. Company Cooperation. The Company hereby
covenants and agrees that it
will not, and each Current Shareholder irrevocably and unconditionally acknowledges and agrees that
the Company will not (and waives any rights against the Company in relation thereto) to the extent
permitted by law, recognize any encumbrance or agreement on any of the Shares or Other Securities
subject to this Agreement, other than as noted in the last clause of the third sentence of Section
2.03.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Termination. This Agreement shall terminate
upon the earlier of (i)
the fourth anniversary of the date hereof or (ii) the date of termination of the Securities
Purchase Agreement.
SECTION 4.02. Further Assurances. Each of the parties hereto
will execute and
deliver such further documents and instruments and take all further action as may be reasonably
necessary in order to consummate the transactions contemplated hereby.
SECTION 4.03. Specific Performance. The parties hereto agree
that irreparable damage
would occur in the event any provision of this Agreement was not performed in accordance with the
terms hereof. The Investor shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or in equity, and prior to the Closing, the Company shall be
entitled to specific performance of the terms of the first paragraph of Section 1.01, in addition
to any other remedy at law or in equity.
SECTION 4.04. No Effect on Fiduciary Duties. Nothing herein
stated shall limit or
otherwise affect the fiduciary duties of any affiliate of any of the Shareholders as a director of
the Company. This Agreement only applies to the voting of shares and other securities of the
Company by each of the Current Shareholders in its respective capacity as a shareholder of the
Company.
SECTION 4.05. Limited Proxy. Notwithstanding anything stated
in this Agreement, each
of the Current Shareholders will retain at all times the right to vote, or authorize a proxy to
vote, in such Current Shareholder’s or such proxy’s sole discretion, on all matters other than
those set forth in Article I, which are at any time and from time to time presented to the
Company’s shareholders generally.
SECTION 4.06. Entire Agreement. This Agreement constitutes
the entire agreement
among the Company and the Shareholders (other than the Securities Purchase Agreement and the other
“Transaction Documents” (as defined therein)) with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among the Company and
the Shareholders with respect to the subject matter hereof.
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SECTION 4.07. Amendment. This Agreement may not be amended
except by an instrument
in writing signed by the parties hereto.
SECTION 4.08. Severability. If any term or other provision
of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of this Agreement is not affected in any manner materially
adverse to either party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.
SECTION 4.09. Governing Law. All questions concerning the
construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by and construed and
enforced in accordance with the internal laws of the State of Minnesota, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning
the interpretations, enforcement and defense of the transactions contemplated by this Agreement and
any other Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be commenced exclusively
in the state and federal courts located in Hennepin County, Minnesota, U.S.A. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in
Hennepin County, Minnesota, U.S.A. for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court or that such suit, action or proceeding has been commenced in an
improper or inconvenient venue for such proceeding. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. If either party shall
commence an action or proceeding to enforce any provisions of the Transaction Documents, then the
prevailing party in such action or proceeding shall be reimbursed by the other party for its
reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
SECTION 4.10. Notices. All notices and other communications
hereunder shall be in
writing and shall be deemed given if delivered personally, via facsimile (which is confirmed) or
sent by a nationally recognized overnight courier service to the parties at the following addresses
(or such other address for a party as shall be specified by like notice):
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If to the Company:
Wilsons The Leather Experts Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (763)
Attention: Chief Financial Officer
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (763)
Attention: Chief Financial Officer
With a copy to:
Faegre & Xxxxxx LLP
2200 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
2200 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If to any of the Shareholders:
to
its address and facsimile number set forth on the signature page
hereto, with copies to such Shareholder’s representatives as set forth thereon;
or to such other address and/or facsimile number and/or to the attention of such other person as
the recipient party has specified by written notice given to each other party five (5) days prior
to the effectiveness of such change.
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IN WITNESS WHEREOF, the Shareholders and the Company have duly executed this Support
Agreement.
| THE COMPANY: | ||||||
| WILSONS THE LEATHER EXPERTS INC. | ||||||
| By: | ||||||
| Title: Chief Financial Officer | ||||||
[SIGNATURE PAGE TO SUPPORT AGREEMENT]
| SHAREHOLDER: | ||||||
| PENINSULA INVESTMENT PARTNERS, L.P. | ||||||
| By: | Peninsula Capital Appreciation, LLC, its | |||||
| General Partner | ||||||
| By: | ||||||
| Title: Managing Member | ||||||
| 000X Xxxx Xxxx Xxxxxx, 0xx Xxxxx | ||||||
| Xxxxxxxxxxxxxxx, Xxxxxxxx 00000 | ||||||
| Attention: Mr. R. Xxx Xxxxxxxx | ||||||
| Telephone: (000) 000-0000 | ||||||
| Facsimile: (000) 000-0000 |
[SIGNATURE PAGE TO SUPPORT AGREEMENT]
| SHAREHOLDER: | ||||||
| QUAKER CAPITAL PARTNERS I, L.P. | ||||||
| By: | Quaker Premier, LP, its general partner | |||||
| By: | Quaker Capital Management Corp., its general partner | |||||
| By: | ||||||
| Title: President | ||||||
| 000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxxxxx, Xxxxxxxxxxxx 00000 | ||||||
| Attention: Xxxx X. Xxxxxxxxxx | ||||||
| Telephone: (000) 000-0000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
[SIGNATURE PAGE TO SUPPORT AGREEMENT]
| SHAREHOLDER: | ||||||
| QUAKER CAPITAL PARTNERS II, L.P. | ||||||
| By: | Quaker Premier II, LP, its general partner | |||||
| By: | Quaker Capital Management Corp., its general partner | |||||
| By: | ||||||
| Title: President | ||||||
| 000 Xxxx Xxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxxxxx, Xxxxxxxxxxxx 00000 | ||||||
| Attention: Xxxx X. Xxxxxxxxxx | ||||||
| Telephone: (000) 000-0000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
[SIGNATURE PAGE TO SUPPORT AGREEMENT]
| SHAREHOLDER/INVESTOR: | ||||||
| Marathon Fund Limited Partnership V | ||||||
| By: | Miltiades, LLP, its general partner | |||||
| By: | Marathon Ultimate GP, LLC, its general partner | |||||
| By: | ||||||
| Title: Manager | ||||||
| 3700 Xxxxx Fargo Center | ||||||
| 00 Xxxxx Xxxxxxx Xxxxxx | ||||||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||||||
| Attention: Xxxxxxx X. Xxxxxxx | ||||||
| Telephone: (000) 000-0000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| With a copy to: | ||||||
| Xxxxxx & Whitney LLP | ||||||
| 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||||||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||||||
| Attention: Xxxxxx X. Xxxxxxxxx, Esq. | ||||||
| Telephone: (000) 000-0000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
ANNEX A
| Voting | ||||||||||||
| Percentage of | Percentage of | |||||||||||
| Common Stock | Stock | Stock | ||||||||||
| Shareholder | Owned* | Outstanding | Outstanding | |||||||||
Peninsula Investment
Partners, L.P.
(“Peninsula”)* |
15,487,513 | 39.53 | % | 39.53 | % | |||||||
Quaker Premier I, LP
and Quaker Premier II,
LP (“Quaker”)** |
6,708,110 | 17.10 | % | 17.10 | % | |||||||
Marathon Fund Limited
Partnership V |
None | 0 | % | 0 | % | |||||||
| * | In addition, Peninsula holds warrants for 2,857,142 shares of Common Stock
which would be deemed to constitute beneficial ownership by Peninsula of the
underlying shares of Common Stock but which cannot be voted until the warrants
have been exercised and Peninsula shall have acquired record ownership of the
underlying shares of Common Stock. |
|
| ** | In addition, Quaker holds warrants for 1,142,858 shares of Common Stock
which would be deemed to constitute beneficial ownership by Quaker of the
underlying shares of Common Stock but which cannot be voted until the warrants
have been exercised and Quaker shall have acquired record ownership of the
underlying shares of Common Stock. |
