Execution Copy
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EXHIBIT 4.1
STOCKHOLDERS AGREEMENT
by and among
NBC ACQUISITION CORP.,
HWH CAPITAL PARTNERS, L.P.,
HWH CORNHUSKER PARTNERS, L.P.,
WESTON PRESIDIO CAPITAL III, L.P.,
WESTON PRESIDIO CAPITAL IV, L.P.,
WPC ENTREPRENEUR FUND, L.P.,
WPC ENTREPRENEUR FUND II, L.P.,
and
THE OTHER STOCKHOLDERS PARTY HERETO
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July 11, 2002
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TABLE OF CONTENTS
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Page
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ARTICLE I RESTRICTIONS ON TRANSFER.............................................1
1.01 Restrictions on Transfer of Shares..............................1
1.02 Transfers During Initial Three Years............................2
1.03 Transfers After Initial Three Years.............................2
1.04 Management Stockholders.........................................2
1.05 Transfers in Compliance with Law; Substitution of Transferee....2
ARTICLE II TAG-ALONG RIGHT.....................................................3
2.01 Offer...........................................................3
2.02 Notice..........................................................3
2.03 Rights of Other Stockholders....................................3
2.04 Exercise of Rights by other Stockholders........................3
2.05 Sale to Third Party Offeror.....................................3
2.06 Non-Application.................................................4
ARTICLE III DRAG-ALONG RIGHTS..................................................4
3.01 Drag-Along Right................................................4
3.02 Drag-Along Procedure............................................6
3.03 Drag-Along Notice...............................................6
3.04 Mechanics of Sale...............................................6
3.05 Waiver of Appraisal Rights......................................6
3.06 Voting Agreement; Proxy.........................................7
3.07 Non-Application.................................................7
ARTICLE IV PREEMPTIVE RIGHTS...................................................7
4.01 General.........................................................7
ARTICLE V DIRECTORS; INFORMATION RIGHTS........................................8
5.01 Size of the Board...............................................8
5.02 Composition of the Board; Board Committees......................8
5.03 Election and Removal of Directors...............................9
5.04 Decisions of the Board of Directors.............................9
5.05 Consent Rights..................................................9
5.06 Information Rights.............................................11
5.07 Notice of Offer................................................12
ARTICLE VI STOCK CERTIFICATE LEGEND...........................................12
6.01 General........................................................12
ARTICLE VII DEFINITIONS.......................................................13
7.01 Certain Definitions............................................13
7.02 Other Defined Terms............................................15
7.03 HWH/Buyers.....................................................16
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ARTICLE VIII MISCELLANEOUS....................................................17
8.01 Effective Date; Termination....................................17
8.02 Confidentiality................................................17
8.03 By-law Amendments..............................................18
8.04 Notices........................................................18
8.05 Assignment.....................................................20
8.06 No Third Party Beneficiaries...................................20
8.07 Severability...................................................20
8.08 Amendment and Waiver...........................................20
8.09 Usage..........................................................20
8.10 Articles and Sections..........................................20
8.11 No Strict Construction.........................................20
8.12 Governing Law..................................................20
8.13 Consent to Jurisdiction and Service of Process.................20
8.14 Waiver of Jury.................................................21
8.15 Specific Performance...........................................21
8.16 Complete Agreement.............................................21
8.17 Counterparts...................................................21
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STOCKHOLDERS AGREEMENT
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THIS STOCKHOLDERS AGREEMENT is made as of July 11, 2002 (this
"Agreement"), by and among HWH Capital Partners, L.P., a Delaware limited
partnership ("HWH Capital"), HWH Cornhusker Partners, L.P., a Delaware limited
partnership ("HWH Cornhusker" and, together with HWH Capital, "HWH"), each of
the persons listed on the signature pages hereto (collectively, the "Management
Stockholders," and each individually, a "Management Stockholder"), Weston
Presidio Capital III, L.P., a Delaware limited partnership ("Buyer 1"), Weston
Presidio Capital IV, L.P., a Delaware limited partnership ("Buyer 2"), WPC
Entrepreneur Fund, L.P., a Delaware limited partnership ("Buyer 3") and WPC
Entrepreneur Fund II, L.P., a Delaware limited partnership ("Buyer 4") and NBC
Acquisition Corp., a Delaware corporation (the "Company"). Buyer 1, Buyer 2,
Buyer 3 and Buyer 4 are collectively referred to herein as the "Buyers," and
each, a "Buyer". Unless otherwise provided herein, capitalized terms used herein
are defined in Article VII below.
R E C I T A L S:
- - - - - - - -
A. The Company has authorized capital stock of 5,000,000 shares
of Class A Common Stock, par value $0.01 per share (the "Common Stock").
B. Pursuant to a Stock Purchase Agreement, dated as of even date
herewith (the "Stock Purchase Agreement"), among HWH, certain of the Management
Stockholders and the Buyers, the Buyers have agreed to purchase shares of Common
Stock from HWH and such Management Stockholders.
C. The parties have agreed INTER ALIA to make certain provisions
relating to the transfer of Shares and governance, upon the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
RESTRICTIONS ON TRANSFER
1.01 RESTRICTIONS ON TRANSFER OF SHARES. No Stockholder or
Management Stockholder shall sell, give, assign, hypothecate, pledge, encumber,
grant a security interest in or otherwise dispose of (whether by operation of
law or otherwise) (each a "Transfer") any of its Shares or any right, title or
interest therein or thereto, except in accordance with the provisions of this
Agreement. Any attempt to Transfer any Shares or any rights hereunder in
violation of the preceding sentence shall be null and void ab initio.
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1.02 TRANSFERS DURING INITIAL THREE YEARS. From the Closing Date
(as defined in the Stock Purchase Agreement) until the third anniversary
thereof, and subject to the last sentence of this Section 1.02, HWH (acting
jointly) and the Buyers (acting jointly), may each Transfer all, but not less
than all, of their respective Shares to a single third party (or a group of
related third parties) in a single transaction only with the prior written
consent of the non-transferring Stockholders, which consent shall not be
unreasonably withheld; except that any such consent may be withheld in the sole
discretion of the non-transferring Stockholders if such Transfer would result in
the triggering of any "change of control" provisions under any Indenture or any
other material debt instrument to which the Company or any Subsidiary is a party
or by which it is bound. If HWH is the transferring Stockholder, HWH shall also
have the rights set forth in Article III and any exercise of the Drag-Along
Right (as defined below) thereunder shall not require any consent of the other
Stockholders under this Section 1.02, and the Buyers shall have the rights set
forth in Article II.
1.03 TRANSFERS AFTER INITIAL THREE YEARS. At any time after the
third anniversary of the Closing Date, any Stockholder may Transfer all or a
portion of its Shares to a third party or to any Affiliate of such Stockholder
(subject to the Tag-Along Right set forth in Article II), PROVIDED, that the
prior written consent of the Company to the sale of any Shares that constitute
less than 50% of all of the issued and outstanding shares of Common Stock (on a
fully diluted, as converted basis) shall be required if the proposed purchaser
is a Competitor.
1.04 MANAGEMENT STOCKHOLDERS. A Management Stockholder may
Transfer all or any portion of his Shares upon his death, to his heirs or legal
representatives, provided, that any such permitted transferees agree in writing
to be bound hereby, as "Management Stockholders", as if they were an original
party hereto.
1.05 TRANSFERS IN COMPLIANCE WITH LAW; SUBSTITUTION OF
TRANSFEREE.
(a) Notwithstanding any other provision of this Agreement,
no Transfer may be made pursuant to Section 1.02 or 1.03 unless the Transfer
complies in all respects with (i) the applicable provisions of this Agreement
and (ii) applicable federal and state securities laws, including the Securities
Act. If reasonably requested by the Company, an opinion of counsel to such
transferring Stockholder shall be supplied to the Company at such Stockholder's
expense, as the case may be, to the effect that such Transfer complies with the
applicable federal and state securities laws.
(b) Notwithstanding any other provision of this Agreement,
no Transfer may be made unless the transferee has agreed in writing with HWH and
the Buyers, in form and substance reasonably satisfactory to HWH and the Buyers,
to be bound by the terms and conditions of (i) this Agreement and (ii) if such
Transfer is effected pursuant to Section 1.02 or 1.04, the Buy/Sell Agreement.
Upon becoming a party to this Agreement, the transferee of a Stockholder or
Management Stockholder shall be substituted for, and shall enjoy the same rights
and be subject to the same obligations as, the transferring Stockholder or
Management Stockholder under this Agreement and, if such Transfer is effected
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pursuant to Section 1.02 or 1.04, the Buy/Sell Agreement with respect to the
Shares transferred to such transferee.
ARTICLE II
TAG-ALONG RIGHT
2.01 OFFER. If, at any time during the term hereof, any
Stockholder has received an offer from a third party (the "Third Party Offeror")
to buy for cash, securities or any combination thereof (for purposes of this
Article II, a "Third Party Offer") all or a portion of its Shares (such Shares
shall be referred to as the "Selling Stockholder's Offered Shares"), and such
Stockholder (for the purpose of this Article II, the "Selling Stockholder")
desires to accept the Third Party Offer, the non-Selling Stockholders and
Management Stockholders shall have the right to participate PRO RATA in any sale
of the Selling Stockholder's Offered Shares (the "Tag-Along Right") to the Third
Party Offeror, in accordance with the procedures set forth in this Article II.
Such Tag-Along Right shall be upon the same terms and conditions as the Third
Party Offer.
2.02 NOTICE. The Selling Stockholder shall send written notice of
the Tag-Along Right (the "Tag-Along Notice") to each of the other Stockholders
and Management Stockholders, which notice shall state the number of Shares
included in the Selling Stockholder's Offered Shares, the proposed purchase
price per share and the nature of consideration (whether cash, securities or a
combination thereof). The Tag-Along Notice shall also state all of the material
terms and conditions of the Third Party Offer and the name of the Third Party
Offeror and shall include a copy of all writings between the Third Party Offeror
and the Selling Stockholder necessary to establish the terms of the Third Party
Offer.
2.03 RIGHTS OF OTHER STOCKHOLDERS. Each Stockholder and
Management Stockholder (other than the Selling Stockholder) shall have the right
to (i) sell, upon the terms set forth in the Third Party Offer, that number of
Shares determined by multiplying the total number of Selling Stockholder's
Offered Shares by a fraction, the numerator of which shall be the total number
of Shares held by such Stockholder or Management Stockholder and the denominator
of which shall be the total number of issued and outstanding shares of Common
Stock, or (ii) reject the Tag-Along Right.
2.04 EXERCISE OF RIGHTS BY OTHER STOCKHOLDERS. The rights of each
of the other Stockholders and Management Stockholders under Section 2.03 shall
be exercisable by written notice to the Selling Stockholder, with a copy to the
Company, given within 15 days after receipt of the Tag-Along Notice (the "Notice
Period"). If any other Stockholder or Management Stockholder fails to respond to
the Selling Stockholder within the Notice Period, such failure shall be regarded
as a rejection of the Tag-Along Right.
2.05 SALE TO THIRD PARTY OFFEROR. Each Stockholder and Management
Stockholder who accepts the Tag-Along Right may sell its PRO RATA number of
Shares (as determined under Section 2.03) and the Selling Stockholder may sell a
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number of Shares equal to the Selling Stockholder's Offered Shares, less the
aggregate number of Shares to be sold by the other Stockholders and Management
Stockholders exercising their Tag-Along Right, to the Third Party Offeror on the
terms and conditions of the Third Party Offer.
2.06 NON-APPLICATION. The provisions of this Article II shall not
apply in connection with or as part of a registered public offering of any
securities of the Company in which any Stockholder or Management Stockholder
participates pursuant to the Registration Rights Agreement, or otherwise, or any
Transfer of Shares pursuant to Rule 144 promulgated under the Securities Act.
ARTICLE III
DRAG-ALONG RIGHTS
3.01 DRAG-ALONG RIGHT.
(a) INITIAL THREE-YEAR PERIOD. If, at any time from the
Closing Date until the third anniversary thereof, HWH or the Company receives an
offer from a third party (which is not an Affiliate of HWH) on an arm's length
basis to purchase all of the issued and outstanding capital stock, or all or
substantially all of the assets, of the Company (i) at a price that would result
in gross proceeds per Share (excluding any contingent, earnout or similar
payment, but including any proceeds (up to 15% of the aggregate gross proceeds
payable to the Buyers) that may be required to be held in escrow) to the Buyers
that represent the greater of (1) a premium of at least 20% over the per Share
purchase price that would apply if the Remaining Stockholder Put (as defined in
the Buy/Sell Agreement) were to be exercised, as determined in accordance with
Section 1.04 of the Buy/Sell Agreement, as if a Buy/Sell Initiation Notice (as
defined in the Buy/Sell Agreement) had been given on the date that HWH or the
Company receives the offer from the third party, and (2) the sum of (x) the
original purchase price per Share paid by the Buyers on the Closing Date, and
(y) an amount constituting an internal rate of return of at least 10% of the
original purchase price per Share paid by the Buyers on the Closing Date,
compounded annually from the Closing Date, and (ii) for consideration consisting
of cash and/or immediately freely tradable securities of a publicly traded
company with a market capitalization of at least $1,000,000,000 (the items in
clauses (i) and (ii), collectively referred to as the "Qualifying
Consideration"), then HWH may transfer all, but not less than all, of its Shares
to such third party and shall have the right to require the Management
Stockholders and the other Stockholders to sell all of their Shares on the same
terms and conditions and for the same consideration per Share; provided,
however, that following notice by HWH of its intention to exercise its rights
pursuant to this Section 3.01(a), the Buyers (or their permitted transferees
under Section 1.02) shall first have the opportunity to exercise and perfect
their rights under the Buy/Sell Agreement and, upon such exercise, HWH and the
Management Stockholders shall be required to exercise the Remaining Stockholder
Put, unless HWH revokes its intention to exercise its Drag-Along Right pursuant
to this Section 3.01(a) (which revocation may be made by HWH at any time prior
to the closing of the Remaining Stockholder Put). If HWH does so revoke its
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intention to exercise its Drag-Along Right, within five days following notice
from HWH of such revocation, the Buyers shall have the right to revoke the
Buy/Sell Initiation Notice. If HWH does not revoke its intention to exercise its
Drag-Along Right in any such instance, and the Buyers have exercised their
rights under the Buy/Sell Agreement, then HWH's Drag-Along Right in connection
with such transaction shall be subject to the rights and obligations applicable
to the exercise of the Remaining Stockholder Put. For purposes of this Section
3.01(a) "immediately freely tradable securities" means securities that are
eligible for sale immediately under the Securities Act of 1933, as amended,
without volume or other limitations imposed by Rule 144 or 145 thereunder, and
have been listed on any national securities exchange or other market place on
which other securities of such class are then listed or otherwise eligible for
trading.
(b) AFTER INITIAL THREE-YEAR PERIOD. If, at any time after
the third anniversary of the Closing Date, HWH continues to own a majority of
the issued and outstanding shares of Common Stock and HWH desires to sell at
least a majority of its Shares in one transaction or a series of related
transactions (including a merger or consolidation) to a third party (which is
not an Affiliate of HWH) on an arm's length basis for Qualifying Consideration
at a price that would result in gross proceeds per Share (excluding any
contingent, earnout or similar payment, but including any proceeds (up to 15% of
the aggregate gross proceeds payable to the Buyers) that may be required to be
held in escrow) to the Buyers that represent the sum of (x) the original
purchase price per Share paid by the Buyers on the Closing Date, and (y) an
amount constituting an internal rate of return of at least 10% of the original
purchase price per Share paid by the Buyers on the Closing Date, compounded
annually from the Closing Date, then HWH shall have the right to require the
Management Stockholders and the other Stockholders to sell to such third party
the same PRO RATA amount of their respective Shares as is being sold by HWH on
the same terms and conditions and for the same consideration per Share, in
accordance with clause (ii) of Section 3.02; provided, that as a condition to
the exercise of the Drag-Along Right during the period after the third
anniversary of the Closing Date, HWH shall have obtained, at the expense of the
Company, an opinion from a nationally-recognized investment bank mutually
acceptable to HWH and the Buyers, in the exercise of their reasonable
discretion, that the terms and conditions of the transaction (including the
amount and form of consideration) with respect to which HWH seeks to exercise
its Drag-Along Right are fair to the Stockholders and the Management
Stockholders from a financial point of view.
(c) NO ALTERATION; CONSISTENT TERMS. Notwithstanding
anything to the contrary in this Agreement, in no event shall any transaction
consummated pursuant to the Drag-Along Right provided pursuant to Section 3.01
be consummated upon terms and conditions that are (x) in conflict with the
rights of the parties under this Agreement or the Buy/Sell Agreement, or (y) on
terms that are more onerous to the Dragged-Along Sellers than to HWH; provided,
that any transaction in which the Dragged-Along Sellers are required to bear
more than their PRO RATA share of any expenses of such transaction, or assume
escrow or indemnification obligations that are disproportionate to their PRO
RATA share of any consideration issued in such transaction, shall be deemed to
be PER SE more onerous. The parties acknowledge and agree that the assumption of
any escrow or indemnification obligations in connection with the consummation of
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a Drag-Along Right shall in no event be deemed to be in conflict with the rights
of the parties under this Agreement.
3.02 DRAG-ALONG PROCEDURE. If HWH desires to exercise its rights
pursuant to either Section 3.01(a) or 3.01(b) (the "Drag-Along Right"), HWH
shall send written notice (the "Drag-Along Notice") to the Company, the
Management Stockholders and the other Stockholders (the "Dragged-Along Sellers")
notifying them that (i) in the case of Section 3.01(a), they will be required to
sell all (but not less than all) of their Shares in such sale, or (ii) in the
case of Section 3.01(b), they will be required to sell that number of their
Shares (but not less than such number of their Shares) that is equal to the
product of (x) the number of Shares held by such Dragged-Along Seller and (y) a
fraction, the numerator of which is the number of Shares proposed to be sold by
HWH, and the denominator of which is the total number of Shares owned by HWH
(such number of Shares to be subject to the Drag-Along Right, the "Drag-Along
Amount").
3.03 DRAG-ALONG NOTICE. The Drag-Along Notice shall set forth (a)
the name and address of the transferee and (b) a copy of the written proposal
pursuant to which the transfer will be effected, containing all of the material
terms and conditions thereof, including (i) the number of Shares proposed to be
transferred by HWH, (ii) the percentage of the Shares being sold by HWH
vis-a-vis all the Shares owned by HWH in the case of a transfer under Section
3.01(b), (iii) the price per Share to be paid, (iv) the terms and conditions of
payment offered by the transferee, (v) whether HWH has determined to exercise
the Drag-Along Right, (vi) if HWH has determined to exercise the Drag-Along
Right, that the transferee has been informed of the Drag-Along Right provided
for in this Article III and has agreed to purchase the applicable Drag-Along
Amount of each Dragged-Along Seller in accordance with the terms hereof, and
(vii) the date and location of and procedures for selling the Shares to the
transferee.
3.04 MECHANICS OF SALE. Upon receipt of a Drag-Along Notice, each
Dragged-Along Seller receiving such notice shall be obligated to (i) sell all of
its Shares or its Drag-Along Amount, as the case may be, in the transaction
(including a sale or merger) as contemplated by the Drag-Along Notice on the
same terms and conditions as HWH and (ii) otherwise take all reasonably
necessary action to cause the consummation of such transaction, including voting
its Shares in favor of such transaction and not exercising any appraisal rights
in connection therewith. Each Dragged-Along Seller further agrees to take all
actions (including executing documents) in connection with the consummation of
the proposed transaction as may reasonably be requested of it by HWH.
3.05 WAIVER OF APPRAISAL RIGHTS. Each Stockholder and each
Management Stockholder hereby agrees not to demand, and hereby waives, any and
all rights to obtain payment of the fair value of its Shares pursuant to Section
262 of the Delaware General Corporation Law or otherwise arising in connection
with the consummation of any merger (each, a "Required Merger") in connection
with which HWH has exercised its Drag-Along Rights, or in connection with the
exercise of the Remaining Stockholder Put, and the approval, execution and
delivery of any merger agreement in connection with any such transaction.
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3.06 VOTING AGREEMENT; PROXY. Each Stockholder and each
Management Stockholder hereby agrees that, during the term of this Agreement, at
any meeting of the stockholders of the Company, however called, or any
adjournment thereof, or by written consent, such Stockholder or Management
Stockholder shall be present (in person or by proxy) and vote (or cause to be
voted), or execute a written consent in respect of, all of its Shares (i) in
favor of ratification or approval of any merger agreement to be entered into in
connection with a Required Merger, and the consummation of any Required Merger,
and (ii) against any action or agreement that would be in any way inconsistent
or in conflict with any Required Merger. Each Stockholder (other than the
Buyers) and each Management Stockholder hereby appoints HWH as such
Stockholder's or Management Stockholder's attorney and proxy with full power of
substitution, to vote, and otherwise act (by written consent or otherwise) with
respect to the Shares of such Stockholder or Management Stockholder, solely on
the matters and in the manner specified in this Section 3.06.
3.07 NON-APPLICATION. The provisions of this Article III shall
not apply in connection with or as part of a registered public offering of any
securities of the Company in which any Stockholder or Management Stockholder
participates pursuant to the Registration Rights Agreement, or otherwise, or any
Transfer of Shares pursuant to Rule 144 promulgated under the Securities Act.
ARTICLE IV
PREEMPTIVE RIGHTS
4.01 GENERAL. The Company shall not issue any shares of Common
Stock or any Equity Securities ("Offered Shares") to any Person (other than
shares of Common Stock or any Equity Securities issued pursuant to (a) options
or shares of Common Stock issued upon the exercise of any stock options granted
under the Option Plans, (b) any stock split, stock dividend or other similar
stock recapitalization that affects all holders of shares of Common Stock
equivalently, or (c) any shares of Common Stock or any Equity Securities issued
upon the exercise, conversion or exchange of any Equity Securities in accordance
with the terms thereof), unless the Company has offered in writing to the
Stockholders (the "Preemptive Notice") the right to purchase, at the same price
and on the same terms as the Offered Shares, a portion of the Offered Shares
equal to the product of (i) the total number of Offered Shares and (ii) a
fraction, the numerator of which is the number of Shares owned by such
Stockholder and the denominator of which is the total number of issued and
outstanding shares of Common Stock (the "Preemptive Right"). If the Offered
Shares are being issued in connection with the issuance of any other securities
or the incurrence of any debt by the Company ("Other Securities or Debt"), each
Stockholder shall be required to purchase its proportionate share of such Other
Securities or Debt in order to exercise its Preemptive Right. Each Stockholder
shall have the right to accept the offer for all or a portion of its portion of
the Offered Shares as calculated in accordance with this Article IV by written
notice to the Company within 15 days of receipt by such Stockholder of the
Preemptive Notice.
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ARTICLE V
DIRECTORS; INFORMATION RIGHTS
5.01 SIZE OF THE BOARD. As of the Closing Date, and until amended
in accordance with applicable law and the certificate of incorporation and
by-laws of the Company, the number of directors constituting the entire board of
directors of the Company (the "Board") shall be seven, subject to Sections
5.02(b), (c) and (d).
5.02 COMPOSITION OF THE BOARD; BOARD COMMITTEES.
(a) As of the Closing Date and, except as provided in
Sections 5.02(b) and 5.02(c), thereafter during the term of this Agreement, the
Board shall consist of the following individuals:
(i) if and for so long as HWH collectively owns at
least 45% of the issued and outstanding Shares, HWH shall
nominate four directors;
(ii) if and for so long as the Buyers own, in the
aggregate, at least 25% of the issued and outstanding Shares, the
Buyers shall jointly nominate two directors; and
(iii) the chief executive officer of the Company.
(b) If and for so long as the Buyers own, in the aggregate,
16% or more, but less than 25%, of the issued and outstanding Shares, the Buyers
shall have the right jointly to nominate one director only. If the Buyers own,
in the aggregate, less than 16% of the issued and outstanding Shares, the Buyers
shall not have the right to nominate any directors.
(c) If and for so long as HWH owns 35% or more, but less
than 45%, of the issued and outstanding Shares, HWH shall have the right to
nominate three directors. If and for so long as HWH owns 25% or more, but less
than 35%, of the issued and outstanding Shares, HWH shall have the right to
nominate two directors. If and for so long as HWH owns 16% or more, but less
than 25%, of the issued and outstanding Shares, HWH shall have the right to
nominate one director only. If HWH owns less than 16% of the issued and
outstanding Shares, HWH shall not have the right to nominate any directors.
(d) The Stockholders and the Management Stockholders agree
to take all such actions as may be necessary or appropriate to reduce the number
of directors constituting the entire Board to implement the provisions of
Sections 5.02(b) and 5.02(c).
(e) The Stockholders agree that any committee of the Board
shall be comprised of such number of directors nominated by HWH and the Buyers,
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respectively, as is approximately proportionate to the number of directors that
HWH and the Buyers have the right to nominate to the entire Board.
5.03 ELECTION AND REMOVAL OF DIRECTORS.
(a) ELECTION OF DIRECTORS. By written notice to the other
Stockholders, prior to or at the Company's annual stockholders' meeting, or any
other meeting at which directors of the Company are to be elected, HWH and the
Buyers shall designate nominees to the Board in accordance with their rights
pursuant to Section 5.02. At the annual stockholders' meeting, each Stockholder
shall take all necessary or desirable action, including the voting of its
Shares, to elect the directors nominated by HWH and the Buyers, and to elect the
chief executive officer of the Company as a director.
(b) REMOVAL OF DIRECTORS. If at any time HWH or the Buyers
notify the other of their wish to remove at any time and for any reason (or no
reason) any of the directors nominated by such Stockholders, then the
Stockholders shall vote all of their Shares so as to remove such director and to
replace such director with a nominee of the relevant Stockholders, or, if
applicable, shall cause their nominees on the Board to vote in favor of the
removal of such director and the appointment of his replacement.
5.04 DECISIONS OF THE BOARD OF DIRECTORS. Subject to Section
5.05, all matters and decisions requiring action by the Board shall be taken by
a simple majority vote of the entire Board.
5.05 CONSENT RIGHTS.
(a) Subject to Section 5.05(b), the following actions shall
not be taken by the Company or any Subsidiary without the prior written consent
of the Buyers:
(i) any acquisition or disposition of assets
(including the acquisition of shares of capital stock of another
Person, whether by merger, stock purchase or otherwise) other
than in the ordinary course of business or involving an amount of
consideration in excess of $15,000,000 in any single instance
(including any series of related transactions);
(ii) the incurrence of any additional debt
obligations by the Company or any Subsidiary other than in the
ordinary course of business or in excess of $15,000,000 in any
single instance (including any series of related transactions) or
in excess of $50,000,000 in the aggregate;
(iii) the discharge of the chief executive
officer, the chief operating officer or the chief financial
officer of the Company other than for cause (as determined by a
majority of the entire Board), and the hiring of any replacement
thereof;
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(iv) changing the principal business of the
Company;
(v) any amendment or modification of the
certificate of incorporation or by-laws of the Company that
materially and adversely affects the rights of the Buyers set
forth in this Agreement, the Stock Purchase Agreement, the
Buy/Sell Agreement or the Registration Rights Agreement, or any
amendment or modification that reduces or limits the provisions
relating to the exculpation or indemnification of directors or
officers of the Company or any amendment or modification of the
certificate of incorporation of the Company that creates any
securities of the Company which (x) would impair or render
substantially more cumbersome the rights of the Buyers under this
Agreement or the Buy/Sell Agreement, or (y) provides for the
payment of cash dividends or mandatory redemption, in each case,
prior to the third anniversary of the Closing Date; provided,
that for so long as the Buyers have the right to nominate any
director to the Board as provided in Section 5.02, any amendment
or modification of the certificate of incorporation or by-laws of
the Company that changes the number of directors on the Board
(other than any amendment or modification to effectuate the
provisions of Section 5.02(b) or 5.02(c)) shall be deemed
automatically to so adversely affect the rights of the Buyers;
(vi) (1) any material transaction (provided, that
any transaction involving an amount, or obligations, equal to or
exceeding $1,000,000 shall be deemed to be PER SE material)
between the Company or any Subsidiary, on the one hand, and any
Stockholder or any Affiliate of a Stockholder, on the other hand,
that is on terms materially less favorable than those that might
have been reasonably obtained in a comparable transaction at such
time from a Person which is not an Affiliate; provided, that HWH
shall be required to give at least 15 days advance notice of any
transaction between HWH or any of its Affiliates (other than
XxxXxxxxxXxx.xxx, Inc., a Delaware corporation
("XxxXxxxxxXxx.xxx")), on the one hand, and the Company and any
Subsidiary, on the other hand, or (2) any material transaction
between the Company or any Subsidiary, on the one hand, and
XxxXxxxxxXxx.xxx, on the other hand, including but not limited
to, (i) the making of any loan to XxxXxxxxxXxx.xxx, or (ii) the
making of any equity investment in XxxXxxxxxXxx.xxx (including
but not limited to pursuant to the exercise of any rights to
purchase additional shares of capital stock of XxxXxxxxxXxx.xxx
pursuant to the Equity Option Agreement described on Schedule
3.19 to the Stock Purchase Agreement), provided, that the
performance by the Company under the agreements set forth on
Schedule 3.19 to the Stock Purchase Agreement in substantially
the manner being currently performed shall not require the
consent of the Buyers, and provided, further, however, that the
Company shall not be permitted to amend or modify such agreements
between the Company and XxxXxxxxxXxx.xxx without the consent of
the Buyers;
11
(vii) any voluntary liquidation of the Company
(except any such liquidation, dissolution, merger or
consolidation of the Company in connection with (x) the
disposition of any assets of the Company or any Subsidiary, or
(y) the acquisition by the Company of the assets or business of
any other Person, subject, in either case, to the consent rights
in clause (i) of Section 5.05(a), if applicable);
(viii) the issuance of any options to acquire
shares of Common Stock pursuant to the Option Plans (x) which
would cause the number of shares of Common Stock issuable under
options issued pursuant to the Option Plans to exceed the sum of
(A) 7.5% of the issued and outstanding shares of Common Stock (on
a fully-diluted, as converted basis), plus (B) the total number
of shares of Common Stock issuable under options permitted to be
issued under the Option Plans as of the date hereof, or (y) with
an exercise price less than the fair market value of the shares
of Common Stock issuable thereunder as determined by the Board;
(ix) the sale of all or substantially all of the
assets of the Company, unless upon the prompt distribution of the
proceeds of such sale, the Buyers would receive gross proceeds
per Share in an amount at least equal to the minimum amount
required for the exercise by HWH of its rights under Section
3.01(a) or 3.01(b), as the case may be, subject to any escrow
permitted under such Section; or
(x) the declaration or payment of any dividends
on, or the redemption of, any securities of, the Company (other
than the declaration and payment of dividends PRO RATA on the
outstanding shares of Common Stock), or the issuance of any
securities of the Company which would impair or render
substantially more cumbersome the rights of the Buyers under the
Buy/Sell Agreement.
(b) The Buyer's consent rights described in (x) clauses (i),
(ii), (iii) and (x) of Section 5.05(a) shall, subject to Section 8.01(b),
terminate on the third anniversary of the Closing Date, (y) all clauses of
Section 5.05(a) (except clause (vi)) shall terminate if the Buyers cease to own,
in the aggregate, at least 10% of the issued and outstanding Shares, and (z) all
clauses of Section 5.05(a) shall terminate on the date the Buyers cease to own,
in the aggregate, any Shares, or as otherwise contemplated by Section 8.01(b).
5.06 INFORMATION RIGHTS. The Buyers shall be entitled to receive:
(a) so long as the Buyers have the right to nominate any
director to the Board as provided in Section 5.02, copies of all documents
delivered to the Board;
(b) so long as the Buyers own, in the aggregate at least 5%
of the issued and outstanding Shares, copies of all reports and other filings
12
filed by the Company with the Commission pursuant to the applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder, whether the Company is
required by applicable law to file any such reports or other filings thereunder
or files such reports or other filings as required by the holders of the debt
issued under any Indenture (which shall be provided to the Buyers as soon as
practicable after the filing of the same with the Commission), except that, if
the Company does not file any such reports or other filings thereunder, copies
of annual audited consolidated financial statements of the Company and the
Subsidiaries (which shall be provided to the Buyers within 90 days after the end
of each fiscal year of the Company), and quarterly unaudited consolidated
financial statements of the Company and the Subsidiaries (which shall be
provided to the Buyers within 45 days after the end of the first three fiscal
quarters of the Company); and
(c) so long as the Buyers own, in the aggregate, at least
10% of the issued and outstanding Shares, such other information relating to the
Company or any Subsidiary as any Buyer may reasonably request which is readily
available or does not require the Company to incur any unreasonable cost or
expense to obtain or make available to such Buyer; provided, that in connection
with the anticipated delivery of a Buy/Sell Initiation Notice under the Buy/Sell
Agreement, the Buyers and their prospective lenders and financial parties shall
be entitled to conduct a due diligence investigation of reasonable and customary
scope.
5.07 NOTICE OF OFFER. If HWH or the Company receives a bona fide
offer from a third party relating to the acquisition of all of the outstanding
shares of capital stock, or all or substantially all of the assets, of the
Company, which HWH intends to pursue, HWH shall promptly, and in any event at
least 30 days prior to the consummation of such transaction, give written notice
thereof to the Buyers, which notice shall set forth (a) the identity of the
third party offeror, and (b) a summary of the material terms and conditions of
such offer. The Buyers shall keep confidential the information contained in any
such notice. In addition, from the date of receipt of such notice until the
earlier of (i) any public announcement or release of such offer, or (ii) receipt
by the Buyers of notice from HWH of HWH's decision not to pursue such offer, the
Buyers shall not acquire or dispose of any beneficial ownership of any publicly
traded securities of the Company or the Principal Subsidiary, including debt
securities issued under the Indentures, except in accordance with the terms of
Section 1.05 or Articles II and III and all applicable securities laws.
ARTICLE VI
STOCK CERTIFICATE LEGEND
6.01 GENERAL. A copy of this Agreement shall be filed with the
Secretary of the Company and kept with the records of the Company. Each
certificate representing Shares shall, at the option of the Company, for as long
as this Agreement is effective, bear a legend as follows:
13
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER
DISPOSITION OF THIS CERTIFICATE MAY BE MADE UNLESS A REGISTRATION
STATEMENT WITH RESPECT TO THIS CERTIFICATE HAS BECOME EFFECTIVE
UNDER SUCH ACT AND SUCH REGISTRATION OR QUALIFICATION AS MAY BE
NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME
EFFECTIVE, OR THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED. NEITHER THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION NOR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY
HAS PASSED ON OR ENDORSED THE MERITS OF THESE SECURITIES.
THE SALE, GRANT, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE,
GRANT OF A SECURITY INTEREST IN OR OTHER DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY THE
TERMS OF THE STOCKHOLDERS AGREEMENT, DATED AS OF JULY 11, 2002,
AMONG THE COMPANY, HWH CAPITAL PARTNERS, L.P., HWH CORNHUSKER
PARTNERS, L.P., WESTON PRESIDIO CAPITAL III, L.P., WESTON
PRESIDIO CAPITAL IV, L.P., WPC ENTREPRENEUR FUND, L.P., WPC
ENTREPRENEUR FUND II, L.P., AND THE OTHER STOCKHOLDERS PARTY
THERETO, AS AMENDED, MODIFIED OR OTHERWISE SUPPLEMENTED FROM TIME
TO TIME, A COPY OF WHICH MAY BE INSPECTED AT THE COMPANY'S
PRINCIPAL OFFICE.
ARTICLE VII
DEFINITIONS
7.01 CERTAIN DEFINITIONS. As used in this Agreement, the
following terms have the following meanings, unless the context otherwise
requires:
14
"AFFILIATE" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person.
"BUY/SELL AGREEMENT" means the Buy/Sell Agreement, dated as of
even date herewith, by and among HWH, the Buyers and the other stockholders
listed on the signature pages thereto.
"COMMISSION" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"COMPETITOR" means, as of any date, (a) any Person (other than
the Company or any of its Affiliates) (i) that directly or indirectly derived in
excess of $5,000,000 in gross revenues during any of the immediately preceding
three fiscal years of such Person from the college bookstore industry, or (ii)
which is a party to a material judicial proceeding pending against the Company
or any of its Affiliates, or (b) any Person that is entitled, directly or
indirectly, whether through ownership of stock, contract or otherwise, to elect
a majority of the board of directors or similar governing body of, or otherwise
directly or indirectly controls or is controlled by or is under direct or
indirect common control with, any Person described in clause (a). The definition
of "Competitor" shall specifically exclude any Person that would otherwise be a
Competitor as the result of a passive, indirect investment in an investment fund
or similar entity; provided, that any Transfer of Shares to such Person shall
not have a competitively adverse effect upon the Company.
"CONTROL" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controls" and "controlled" have meanings correlative to the
foregoing.
"EQUITY SECURITIES" means any security exercisable for, or
convertible or exchangeable into, shares of Common Stock.
"INDENTURES" means (i) the 8.75% senior subordinated notes of the
Principal Subsidiary due 2008, issued under the Indenture, dated as of February
13, 1998, between the Principal Subsidiary and The Bank of New York, as
successor, and (ii) the 10.75% senior discount debentures of the Company due
2009, issued under the Indenture, dated as of February 13, 1998, between the
Company and The Bank of New York, as successor.
"OPTION PLANS" means (i) the NBC Acquisition Corp. 1998
Performance Stock Option Plan, as amended, (ii) the NBC Acquisition Corp. 1998
Stock Option Plan, as amended, and (iii) any successor option plans of the
Company.
"PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental body.
15
"PRINCIPAL SUBSIDIARY" means Nebraska Book Company, Inc., a
Kansas corporation.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of even date herewith, by and among the Company, HWH and the
Buyers.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SHARES" means, with respect to each Stockholder and Management
Stockholder, all shares of Common Stock whether now owned or hereafter acquired,
by such Stockholder or Management Stockholder.
"STOCKHOLDERS" means (i) HWH Capital, (ii) HWH Cornhusker, (iii)
Buyer 1, (iv) Buyer 2, (v) Buyer 3, (vi) Buyer 4, and (vii) any permitted
transferee of HWH or the Buyers, to whom Shares are transferred in accordance
with Section 1.02 or 1.03; and the term "Stockholder" shall mean any of the
foregoing Persons, but shall expressly exclude the Management Stockholders.
"SUBSIDIARY" means the Principal Subsidiary and any other Person,
of which at least a majority of the securities or interests having by the terms
thereof, ordinary voting power to elect at least a majority of the board of
directors or other similar governing body of such Person, that is directly or
indirectly owned or controlled by the Company or by any one or more of the
Subsidiaries or by the Company and any one or more of the Subsidiaries.
7.02 OTHER DEFINED TERMS. The following capitalized terms are
defined in the following Sections of this Agreement:
16
TERM SECTION
Agreement.......................................................... Preamble
Board.............................................................. 5.01
Buyer(s)........................................................... Preamble
Buyer 1............................................................ Preamble
Buyer 2............................................................ Preamble
Buyer 3............................................................ Preamble
Buyer 4............................................................ Preamble
Closing Date....................................................... 1.02
Company............................................................ Preamble
Common Stock....................................................... Recital A
Drag-Along Amount.................................................. 3.02
Drag-Along Notice.................................................. 3.02
Drag-Along Right................................................... 3.02
Dragged-Along Sellers.............................................. 3.02
HWH................................................................ Preamble
HWH Capital........................................................ Preamble
HWH Cornhusker..................................................... Preamble
Management Stockholder(s).......................................... Preamble
Notice Period...................................................... 2.04
Offered Shares..................................................... 4.01
Other Securities or Debt........................................... 4.01
Preemptive Notice.................................................. 4.01
Preemptive Right................................................... 4.01
Qualifying Consideration........................................... 3.01(a)
Required Merger.................................................... 3.05
Selling Stockholder................................................ 2.01
Selling Stockholder's Offered Shares............................... 2.01
Stock Purchase Agreement........................................... Recital B
Tag-Along Notice................................................... 2.02
Tag-Along Right.................................................... 2.01
XxxXxxxxxXxx.xxx................................................... 5.05(v)(i)
Third Party Offer.................................................. 2.01
Third Party Offeror................................................ 2.01
Transfer........................................................... 1.01
7.03 HWH/BUYERS. Any action or decision to be made or any right
exercisable by HWH under this Agreement, including any consent to be given
hereunder, any amendment of this Agreement or any waiver of any provision of
this Agreement, shall be made by holders of a majority-in-interest of the Shares
owned by HWH and its permitted transferees under the Stockholders Agreement and
shall be binding on HWH and all such permitted transferees. Any action or
decision to be made or any right exercisable by the Buyers under this Agreement,
including any consent to be given hereunder, any amendment of this Agreement or
any waiver of any provision of this Agreement, shall be made by holders of a
majority-in-interest of the Shares owned by the Buyers and their permitted
transferees and shall be binding on the Buyers and all such permitted
transferees.
17
ARTICLE VIII
MISCELLANEOUS
8.01 EFFECTIVE DATE; TERMINATION.
(a) This Agreement shall become effective on the Closing
Date.
(b) This Agreement shall terminate upon the earlier of the
following to occur:
(i) the mutual consent of the Buyers and HWH to
terminate this Agreement; and
(ii) the later of (A) the third anniversary of the
Closing Date or (B) the consummation of a public offering of the
shares of Common Stock pursuant to an underwritten public
offering resulting in aggregate cash proceeds to the Company of
at least $50,000,000 (provided, however, that Section 5.02 shall
survive a termination under this clause (ii) for so long as the
Buyers own sufficient Shares to be entitled to nominate at least
one director under Section 5.02).
8.02 CONFIDENTIALITY.
(a) Each party undertakes that it shall not reveal to any
third party any confidential or proprietary information concerning the
organization, business, finance, transactions or affairs (i) of the Company or
the Subsidiary (as defined in the Stock Purchase Agreement) without the prior
written consent of the other parties, or (ii) of any Stockholder or Management
Stockholder or Affiliate thereof without the prior written consent of such
Stockholder or Management Stockholder.
(b) The provisions of Section 8.02(a) shall not apply to:
(i) information that is publicly available (except
by virtue of a breach of this Agreement);
(ii) a disclosure to legal, financial or
professional advisors, auditors or bankers of any party on a
need-to-know basis, provided that each such Person is informed of
the confidential nature of such information and agrees to treat
such information confidential; or
(iii) a disclosure to a regulatory authority or
which the disclosing party reasonably believes it is required to
make under the rules of any stock exchange or by applicable laws
or governmental regulations or regulatory process or in
connection with any judicial process regarding any legal action,
suit or proceeding arising out of or relating to this Agreement.
18
8.03 BY-LAW AMENDMENTS.
(a) Promptly after the Closing Date, HWH and the Buyers
shall cause their nominees on the Board to adopt resolutions to amend:
(i) The second sentence of Article I, Section 1.2
of the by-laws of the Company so that it reads as follows:
"A special meeting of the stockholders shall be called by the
President or any Vice President whenever stockholders owning at
least 10% of the shares of the Corporation then issued and
outstanding and entitled to vote on matters to be submitted to
stockholders of the Corporation shall make application therefor
in writing."
(ii) The second sentence of Article II, Section
2.5 of the by-laws of the Company so that it reads as follows:
"Except as otherwise required by law, notice of each special
meeting shall be mailed to each director, addressed to such
director at such director's residence or usual place of business,
at least five days before the day on which the meeting is to be
held, or shall be sent to such director at such place by
facsimile or electronic mail transmission or telephoned or
delivered to him personally, not later than the third day before
the day on which the meeting is to be held."
(b) So long as the Buyers own, in the aggregate, (i) at
least 10% of the issued and outstanding Shares, neither HWH nor the Buyers shall
cause or permit an amendment to Article I, Section 1.2 of the by-laws of the
Company after the amendment set forth in Section 8.03(a)(i) has been adopted,
and (ii) at least 16% of the issued and outstanding Shares, neither HWH nor the
Buyers shall cause or permit an amendment to Article II, Section 2.5 of the
by-laws of the Company after the amendment set forth in Section 8.03(a)(ii) has
been adopted.
8.04 NOTICES. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be delivered personally, sent by facsimile transmission,
sent by a nationally recognized courier service or by first class mail, postage
prepaid. Any such notice shall be deemed given when delivered personally or if
sent by facsimile, at the time of receipt of a legible copy thereof or, if sent
by nationally recognized courier service, two days after the date of deposit
with the courier service, or if by first class mail, three days after the date
of deposit in the mail, and shall be sent as follows:
19
(a) if to the Buyers:
Weston Presidio Capital
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Facsimile No.: (000) 000-0000
with copies to:
Weston Presidio Capital
Pier 1, Bay 2
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
and
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
(b) if to the Company or HWH:
HWH Capital Partners, L.P.
c/o Haas Wheat & Partners, L.P.
000 Xxxxxxxx Xxxxx - Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx,
Xxxxxxx X. Xxxxx, and Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000, and
(000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
(c) if to any Management Stockholder, to his address as
recorded in the books of the Company.
Any party may by notice given in accordance with this Section 8.04 to the other
parties designate another address, facsimile number or Person for receipt of
notices hereunder.
20
8.05 ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement and the rights of the parties hereunder are
not assignable.
8.06 NO THIRD PARTY BENEFICIARIES. No provision of this Agreement
is intended to, or shall, confer any third party beneficiary or other rights or
remedies upon any Person other than the parties hereto.
8.07 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
8.08 AMENDMENT AND WAIVER. Any provision of this Agreement may be
amended or waived only in writing signed by each of HWH, the Buyers and the
Company. No waiver of any provision hereunder or any breach or default hereof
shall extend to or affect in any way any other provision or prior or subsequent
breach or default. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any such right, power or privilege, nor any
single or partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege.
8.09 USAGE. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
All terms defined in this Agreement in their singular or plural forms have
correlative meanings when used herein in their plural or singular forms,
respectively. Unless otherwise expressly provided, the words "include,"
"includes" and "including" do not limit the preceding words or terms and shall
be deemed to be followed by the words "without limitation."
8.10 ARTICLES AND SECTIONS. All references herein to Articles and
Sections shall be deemed references to such parts of this Agreement, unless the
context shall otherwise require. The Article and Section headings in this
Agreement are for reference only and shall not affect the interpretation of this
Agreement.
8.11 NO STRICT CONSTRUCTION. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
Person.
8.12 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of law.
8.13 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. Any legal
action, suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby shall be instituted in any state or federal
21
court in the State of New York located in New York County and each party agrees
not to assert, by way of motion, as a defense or otherwise, in any such action,
suit or proceeding, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that the action, suit or proceeding is brought in an
inconvenient forum, that the venue of the action, suit or proceeding is improper
or that this Agreement, or the subject matter hereof may not be enforced in or
by such court. Each party further irrevocably submits to the exclusive
jurisdiction of any such court in any such action, suit or proceeding. Any and
all service of process and any other notice in any such action, suit or
proceeding shall be effective against any party if given by registered or
certified mail, return receipt requested, or by any other means of mail that
requires a signed receipt, postage prepaid, mailed to such party as herein
provided. Nothing contained herein shall be deemed to affect the right of any
party to serve process in any manner permitted by law.
8.14 WAIVER OF JURY. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO FURTHER
REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.
8.15 SPECIFIC PERFORMANCE. The parties hereto intend that,
without limiting any other remedies of such parties hereunder, each of the
parties shall have the right to obtain specific performance if any other party
hereto fails to perform such party's obligations hereunder.
8.16 COMPLETE AGREEMENT. This Agreement contains the complete
agreement among the parties hereto and supersedes any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
8.17 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same instrument.
[Remainder of Page Intentionally Left Blank]
22
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
HWH CAPITAL PARTNERS, L.P.
By: HWH, L.P., its general partner
By: HWH Incorporated, its general
partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name:
Title:
HWH CORNHUSKER PARTNERS, L.P.
By: HWH Cornhusker, L.P., its general partner
By: HWH Cornhusker Incorporated,
its general partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name:
Title:
WESTON PRESIDIO CAPITAL III, L.P.
By: Weston Presidio Capital Management
III, LLC
By:/s/ Xxxx X. Xxxx
---------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
WESTON PRESIDIO CAPITAL IV, L.P.
By: Weston Presidio Capital Management IV, LLC
By:/s/ Xxxx X. Xxxx
---------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
23
WPC ENTREPRENEUR FUND, L.P.
By: Weston Presidio Capital Management III, LLC
By:/s/ Xxxx X. Xxxx
---------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
WPC ENTREPRENEUR FUND II, L.P.
By: Weston Presidio Capital Management IV, LLC
By:/s/ Xxxx X. Xxxx
---------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
NBC ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: President/CEO
[Signature Page - Stockholders Agreement]
24
MANAGEMENT STOCKHOLDERS:
-----------------------
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Major
------------------------------------
Xxxxx X. Major
/s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
[Signature Page - Stockholders Agreement]
25
/s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. Xxxx
[Signature Page - Stockholders Agreement]
