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Exhibit 10.2
EXECUTION COPY
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JHFSC ACQUISITION CORP.
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STOCKHOLDERS AGREEMENT
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DATED AS OF NOVEMBER 30, 1996
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TABLE OF CONTENTS
1. DEFINITIONS................................................................2
1.1. Certain Definitions ..............................................2
1.2. Certain Matters of Construction ..................................7
1.3. Cross Reference Table ............................................7
2. VOTING AGREEMENT ..........................................................8
2.1. Election of Directors ............................................9
2.2. Removal; Veto Rights .............................................9
2.3. Successors ......................................................10
2.4. Committees ......................................................10
2.5. Certain Liquidity Transactions ..................................10
2.6. Period ..........................................................11
3. CERTAIN TRANSFER RIGHTS AND RESTRICTIONS .................................11
3.1. Transfers of Employee Securities ................................12
3.2. Transfers by Holders of Fund Securities and
Seller Securities ...............................................13
3.3. Transfers of Employee Securities to the Company .................15
3.4. Period ..........................................................16
3.5. Lock-Up .........................................................16
4. CALL OPTIONS TO PURCHASE SECURITIES.......................................16
4.1. Call Options on Employee Securities Upon
Termination of Employment .......................................16
4.2. Call Options on Securities Pledged to
Financial Institution ...........................................17
4.3. Assignment of Call Right ........................................17
4.4. Closing .........................................................17
4.5. Period ..........................................................17
5. "TAKE ALONG" RIGHTS .....................................................17
5.1. Procedure .......................................................18
5.2. Certain Legal Requirements ......................................18
5.3. Further Assurances ..............................................19
5.4. Closing .........................................................19
5.5. Period ..........................................................20
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6. CO-SALE RIGHTS...................................... .....................20
6.1. Tag Along .......................................................20
6.2. Certain Legal Requirements ......................................22
6 3 Further Assurances ..............................................22
6.4. Closing .........................................................23
6.5. Excluded Transactions ...........................................23
6.6. Period ..........................................................23
7. REGISTRATION RIGHTS ......................................................24
7.1. Piggyback Registration Rights ...................................24
7.2. Demand Registration Rights ......................................25
7.3. Certain Other Provisions ........................................27
7.4. Indemnification and Contribution ................................28
7.5. Lock-up .........................................................31
8. CERTAIN FUTURE EQUITY FINANCINGS OF THE COMPANY ..........................31
8.1. Right of Participation ..........................................32
8.2. Period ..........................................................35
9. INFORMATION AND INSPECTION RIGHTS ........................................35
9.1. Financial Statements; Information ...............................35
9.2. Availability of Financial and Other Information .................36
9.3. Inspection ......................................................36
10. AFFILIATED TRANSACTIONS .................................................36
11. REMEDIES ................................................................37
11.1 Generally ......................................................37
11.2. Deposit ........................................................37
12. LEGEND ..................................................................38
13. AMENDMENT, ETC ..........................................................38
13.1. No Oral Modifications ..........................................38
13.2. Written Modifications ..........................................38
14. MISCELLANEOUS ...........................................................38
14.1. Authority; Effect ..............................................38
14.2. Notices ........................................................39
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14.3. Binding Effect, etc ........................................... 42
14.4. Descriptive Headings ...........................................42
14.5 Counterparts ...................................................42
14.6. Severability ...................................................42
15. GOVERNING LAW, ARBITRATION ..............................................43
15.1. Governing Law ..................................................43
15.2. Arbitration ....................................................43
15.3. Consent to Jurisdiction ........................................44
15.4. Waiver of Jury Trial ...........................................44
15.5. Reliance .......................................................45
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STOCKHOLDERS AGREEMENT
This Stockholders Agreement (the "AGREEMENT") is dated as of November 30,
1996, and entered into as of November 29, 1996, by and among:
(i) JHFSC Acquisition Corp., a Delaware corporation (the "COMPANY"),
(ii) Xxxxxx X. Xxx Equity Fund III, L.P., a Delaware limited
partnership, Xxxxxx X. Xxx Foreign Fund III, L.P., a Delaware
limited partnership, THL-CCI Limited Partnership, a Massachusetts
limited partnership (collectively, the "XXX INITIAL INVESTORS"),
and each of the other Xxx Investors from time to time becoming a
party hereto pursuant to the terms hereof,
(iii) SCP Private Equity Partners, L.P., a Delaware limited partnership
(the "SCP Initial Investor"), and each of the other SCP Investors
from time to time becoming a party hereto pursuant to the terms
hereof,
(iv) each of the Employee Investors from time to time party hereto
pursuant to the terms hereof, and
(v) Xxxx Xxxxxxx Subsidiaries, Inc., a Delaware corporation (the
"SELLER INITIAL INVESTOR"), and each of the other Seller Investors
from time to time becoming a party hereto pursuant to the terms
hereof.
RECITALS
1. On or about the date hereof, the Company will acquire all of the
issued and outstanding capital stock of Xxxx Xxxxxxx Freedom Securities
Corporation, a Massachusetts corporation ("JHFSC"), pursuant to a Contribution
Agreement dated as of October 4, 1996 (the "CONTRIBUTION AGREEMENT") among the
Company, the Seller Initial Investor, certain Xxx Initial Investors and the SCP
Initial Investor.
2. Pursuant to a Stock Subscription Agreement dated as of the date
hereof, as listed on Schedule I hereto, the Xxx Initial Investors have agreed to
purchase an aggregate of 4,000,000 shares of Common Stock of the Company, par
value $.01 per share ("COMMON STOCK").
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3. Pursuant to a Stock Subscription Agreement dated as of the date
hereof, as listed on Schedule I hereto, the SCP Initial Investor has agreed to
purchase an aggregate of 1,000,000 shares of Common Stock.
4. Pursuant to the Contribution Agreement, the Seller has contributed
100% of the outstanding capital stock of JHFSC in exchange for an aggregate of
394,653.7 shares of Common Stock, representing 4.999% of the fully-diluted
outstanding capital stock of the Company, and the cash consideration specified
in the Contribution Agreement.
5. The Employee Investors have been or will be issued from time to
time (i) shares of Common Stock and (ii) Options to acquire shares of Common
Stock.
6. The Xxx Investors, the SCP Investors, the Seller Investors and the
Employee Investors are collectively referred to herein as the "INVESTORS", and
each an "INVESTOR."
7. The parties believe that it is in the best interests of the
Company and the Investors to: (i) provide that certain shares of Common Stock
and Options shall be transferable only upon compliance with the terms hereof;
(ii) provide the Company with certain rights and obligations with respect to the
purchase of shares of Common Stock and Options under certain circumstances;
(iii) provide for certain rights and obligations with respect to the election of
directors of the Company; and (iv) set forth their agreements on certain other
matters.
AGREEMENT
Now therefore, in consideration of the foregoing and the mutual
agreements set forth below, the parties hereto, each intending to be legally
bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1. CERTAIN DEFINITIONS. The following terms shall have the
following meanings:
1.1.1. "AFFILIATE" shall mean, with respect to any specified
Person, any Person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control
with, the Person specified.
1.1.2. "AFFILIATED BUYER" shall mean any Proposed Buyer which is
(i) any Fund Investor or Affiliated Fund, or any of their respective
Affiliates, other than any Person which first becomes an Affiliate of any
Fund Investor or Affiliated Fund upon the purchase of Securities in the
Sale, or (ii) any Person in which any Fund Investor or Affiliated Fund
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holds any share of stock (or in the case of a Person which is not a
corporation, equivalent class of beneficial interest), other than shares
of stock (or equivalent beneficial interest) to be received in exchange
for Securities pursuant to the Sale.
1.1.3. "AFFILIATED FUND" shall mean any limited partnership or
other Person formed for the purpose of investing in other companies or
businesses and for which THL Equity Advisors III Limited Partnership, a
Massachusetts limited partnership, or SCP Private Equity Management,
L.P., a Delaware limited partnership, or any of their respective
Affiliates, acts as a general partner.
1.1.4. "BOARD" shall mean the Board of Directors of the Company.
1.1.5. "BLOCK TRANSACTION" shall mean any Transfer of Securities
constituting more than 50% of the aggregate Xxx Securities held by the
Xxx Investors immediately after the closing under the Contribution
Agreement to a single transferee (other than the Company).
1.1.6. "BOOK VALUE" shall mean, as at any date, the book value per
share of Common Stock determined by reference to the audited balance
sheet of the Company as of the most recent fiscal year ended prior to the
date of determination, adjusted appropriately to take account of any
stock splits, stock dividends, conversions or consolidations of stock or
substantially similar reorganizations of the Company's capital stock
since the date of such balance sheet, all in accordance with GAAP.
1.1.7. "COMPETITOR INSTITUTION" shall mean any Person listed on
Schedule 1.1.8 hereto and any Person engaged for the first time
subsequent to the date of this Agreement in a regional brokerage or
investment banking business, which Person is comparable to the entities
listed on Schedule 1.1.8 and which operates in a jurisdiction in which
the Company and its Subsidiaries competes; provided, however, that
neither the Seller Initial Investor nor any of its Affiliates shall be
deemed to be a Competitor Institution so long as such Person has not been
in breach of any non-competition agreement between such Person and the
Company or any of its Subsidiaries.
1.1.8. "EMPLOYEE INVESTOR" shall mean any officer or employee of
the Company or any of its Subsidiaries and any transferee permitted by
Section 3 who, from time to time, acquires Shares or Options and becomes
party to this Agreement by executing and delivering to the Company an
instrument in form satisfactory to the Company pursuant to which such
person agrees to be bound by the terms of this Agreement as an Employee
Investor.
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1.1.9. "EMPLOYEE MAJORITY HOLDERS" shall mean, as of any date,
the holders of a majority of the Employee Securities outstanding on such
date.
1.1.10. "EMPLOYEE SECURITIES" shall mean all Shares originally
issued to (or issued upon conversion of or otherwise with respect to
Shares originally issued to) or held by the Employee Investors, whenever
issued, including without limitation all Shares issued or issuable
pursuant to the exercise of any Options originally issued to or held by
the Employee Investors, whenever issued, and all such Options.
1.1.11. "EXCHANGE ACT" shall mean Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder, all as from time to time in
effect.
1.1.12. "FUND INVESTORS" shall mean, collectively, the Xxx
Investors and the SCP Investors.
1.1.13. "FUND SECURITIES" shall mean, collectively, the Xxx
Securities and the SCP Securities.
1.1.14. "INITIAL PUBLIC OFFERING" shall mean the first public
offering of shares of Common Stock registered on Form S-1 (or any
successor form) under the Securities Act.
1.1.15. "XXX INVESTORS" shall mean the Xxx Initial Investors and
any Affiliated Fund or transferee pursuant to Section 6.5 which, from
time to time, acquires Xxx Securities and becomes party to this
Agreement by executing and delivering to the Company an instrument in
form satisfactory to the Company pursuant to which such Person agrees to
be bound by the terms of this Agreement to the same extent as the Xxx
Initial Investors.
1.1.16. "XXX MAJORITY HOLDERS" shall mean, as of any date, the
holders of a majority of the Xxx Securities outstanding on such date.
1.1.17. "XXX SECURITIES" shall mean all Shares originally issued
to (or issued upon conversion of or otherwise with respect to Shares
originally issued to) or held by the Xxx Investors, whenever issued.
1.1.18. "MEMBERS OF THE IMMEDIATE FAMILY" shall mean, with
respect to any individual, each spouse or child of such individual, each
trust created solely for the benefit of one or more of the
aforementioned Persons and each custodian or guardian of any
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property of one or more of the aforementioned Persons in his capacity as
such custodian or guardian.
1.1.19. "OPTIONS" shall mean any options or warrants or other
rights to subscribe for, purchase or otherwise acquire Common Stock,
other than rights to acquire Shares pursuant to this Agreement.
1.1.20. "PERSON" shall mean any individual, partnership,
corporation, company, association, trust, joint venture, unincorporated
organization or entity, or any government, governmental department or
agency or political subdivision thereof.
1.1.21. "REGISTRABLE SECURITIES" shall mean all shares of Common
Stock, and all shares of Common Stock directly or indirectly issued or
issuable with respect to shares of Common Stock by way of stock dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, in each
case included in the Securities. As to any particular Registrable
Securities, such shares shall cease to be Registrable Securities when
they have been (a) effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them
or (b) distributed to the public through a broker, dealer or market
maker pursuant to Rule 144 or (c) may be distributed to the public
pursuant to Rule 144(k), in each case in compliance with any applicable
provisions of this Agreement.
1.1.22. "RULE 144" shall mean Rule 144, as from time to time in
effect, promulgated by the Securities and Exchange Commission under the
Securities Act (including without limitation clause (k) thereof).
1.1.23. "SCP INVESTOR" shall mean the SCP Initial Investor and
any Affiliated Fund or transferee pursuant to Section 6.5 which, from
time to time, acquires SCP Securities and becomes party to this
Agreement by executing and delivering to the Company an instrument in
form satisfactory to the Company pursuant to which such Person agrees to
be bound by the terms of this Agreement to the same extent as the SCP
Initial Investor.
1.1.24. "SCP MAJORITY HOLDERS" shall mean, as of any date, the
holders of a majority of the SCP Securities outstanding on such date.
1.1.25. "SCP SECURITIES" shall mean all Shares originally issued
to (or issued upon conversion of or otherwise with respect to Shares
originally issued to) or held by the SCP Investors, whenever issued.
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1.1.26. "SECURITIES" shall mean all Shares and all Options
included in the Xxx Securities, the SCP Securities, the Employee
Securities or the Seller Securities.
1.1.27. "SECURITIES ACT" shall mean the Securities Act of 1933,
as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder, all as from time to time in effect.
1.1.28. "SELLER INVESTOR" shall mean the Seller Initial Investor
and any other Person which, from time to time, acquires Seller
Securities and becomes party to this Agreement by executing and
delivering to the Company an instrument in form satisfactory to the
Company pursuant to which such Person agrees to be bound by the terms of
this Agreement to the same extent as the Seller Initial Investor.
1.1.29. "SELLER MAJORITY HOLDERS" shall mean, as of any date,
the holders of a majority of the Seller Securities outstanding on such
date.
1.1.30. "SELLER SECURITIES" shall mean all Shares originally
issued to (or issued upon conversion, exchange or exercise of, or
otherwise with respect to, Shares originally issued to) the Seller
Investors, whenever issued.
1.1.31. "SENIOR MANAGEMENT" shall mean the President, Chairman
and/or Chief Executive Officer of the Company and the President and/or
Chief Executive Officer of each of JHFSC, Xxxxxx Xxxxxxx Incorporated
("Xxxxxx Xxxxxxx") and Sutro & Co., Incorporated (" Sutro").
1.1.32. "SHARES" shall mean all shares of Common Stock.
1.1.33. "SUBSIDIARY" shall mean any Person of which the Company
or other specified Person now or hereafter shall at the time own
directly or indirectly through a Subsidiary at least a majority of the
outstanding capital stock (or other shares of beneficial interest)
entitled to vote generally or control the Board of Directors, including
without limitation, in the case of the Company: JHFSC, Xxxxxx Xxxxxxx,
Sutro, Freedom Capital Management Corporation ("Freedom Capital") and
their respective Subsidiaries.
1.1.34. "VOTING SHARES" shall mean, with respect to any matter
to be voted upon, all Shares included in the Securities entitled to vote
with respect to such matter.
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1.2. CERTAIN MATTERS OF CONSTRUCTION. In addition to the definitions
referred to as set forth in the Section 1.1:
(a) The words "hereof", "herein", "hereunder" and words of
similar import shall refer to this Agreement as a whole and not to any
particular Section or provision of this Agreement, and reference to a
particular Section of this Agreement shall include all subsections
thereof;
(b) References to a Section, Schedule or Exhibit are to a
Section of, or Schedule or Exhibit to, this Agreement;
(c) Definitions shall be equally applicable to both the
singular and plural forms of the terms defined;
(d) The masculine, feminine and neuter genders shall each
include the other; and
(e) Except as otherwise provided herein, any Person who
holds Options shall be deemed to be the holder of the Registrable
Securities obtainable upon exercise of the Options (to the extent that
such Options are then exercisable).
1.3. CROSS REFERENCE TABLE. The following terms defined elsewhere in
this Agreement in the Sections set forth below shall have the respective
meanings therein defined:
Term Definition
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"Agreement" Preamble
"Call Employee Investor Group" Section 4
"Call Option" Section 4
"Common Stock" Recitals
"Company" Preamble
"Company Note" Section 4
"Designated Employee" Section 3.1.1
"Employee Initiating Party" Section 3.1.1
"Employee Designated Director" Section 2.1
"First Refusal Period" Section 3.1.1
"First Refusal Securities" Section 3.1.1
"General Representations" Section 5.3
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"Individual Representations" Section 5.3
"Individual Underwriting Agreement Representations" Section 7.1
"Initiating Holders" Section 7.2
"Investor" Recitals
"Issuance" Section 8.1
"Xxx Designated Directors" Section 2.1
"Xxx Initial Investors" Preamble
"Majority Initiating Holders" Section 7.2
"Non-Complying Investor" Section 7
"Non-Employee Initiating Party" Section 3.2.1
"Offered Securities" Section 3.2.1
"Offer Proposal" Section 3.2.1
"Offer Period" Section 3.2.1
"Participating Buyer" Section 8.1
"Participating Seller" Section 5.1; 6.1
"Preemption Notice" Section 8.1
"Preemptive Portion" Section 8.1
"Preemptive Purchaser Offerees" Section 8.1
"Proposed Buyer" Section 5; 6.1; 8.1
"Proposed Fund Seller" Section 6.1
"Proposed Investor Seller" Section 5; 6.1
"Public Offering" Section 7.1
"Requesting Majority Holders" Section 5.5
"Sale" Section 5; 6.1
"Sale Percentage" Section 5; 6.1
"SCP Designated Directors" Section 2.1
"SCP Initial Investor" Section 2.1
"Seller Initial Investor" Preamble
"Subject Securities" Section 8.1
"Tag Along Notice" Section 6.1
"Tag Along Offerees" Section 6.1
"Take Along Notice" Section 5.1
"Transfer" Section 3
"Transfer Notice" Section 3.1.1
2. VOTING AGREEMENT.
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2.1. ELECTION OF DIRECTORS. Each holder of Voting Shares (other than
a holder of Seller Securities) hereby agrees to cast all votes to which such
holder is entitled in respect of the Voting Shares now or hereafter owned by
such holder, whether at any annual or special meeting of stockholders, by
written consent or otherwise, to:
(i) fix the number of directors on the Board at a number equal to
eight (8), such that the Board shall consist of an equal number
of directors designated by the SCP Majority Holders and the
Employee Majority Holders on the one hand, and the Xxx Majority
Holders on the other hand;
(ii) elect as a director of the Company one individual (the "SCP
DESIGNATED DIRECTOR") that may be designated by the SCP Majority
Holders for election;
(iii) elect as directors of the Company three individuals, which
individuals shall initially consist of such individuals who
shall be the Chairman of JHFSC, the President of Xxxxxx Xxxxxxx
and the President of Sutro (the "EMPLOYEE DESIGNATED
DIRECTORS"); and
(iv) elect as the remaining four members of the Board such
individuals as may be designated by the Xxx Majority Holders for
election (the "XXX DESIGNATED DIRECTORS").
2.2. REMOVAL: VETO RIGHTS. No Employee Designated Director, SCP
Designated Director or Xxx Designated Director may be removed without the
consent of a majority of the holders of Securities which designated such
Director, except for cause in accordance with the by-laws of the Company, as
from time to time in effect; PROVIDED, HOWEVER, that the Xxx Designated
Directors (i) shall have the unilateral right, with or without cause, to
terminate the employment of any member of Senior Management, and the right to
remove with or without cause any Employee Designated Director in connection the
termination of the employment of any such Employee Designated Director, and (ii)
shall have the unilateral right to direct the appointment of any Person to a
Senior Management position. The Xxx Investors hereby acknowledge and agree that
prior to taking any action set forth in this Section 2.2 (i) and (ii), they will
cause the Xxx Designated Directors to notify and discuss such action with the
other members of the Board, it being acknowledged and agreed that the consent of
the SCP Designated Director and the Employee Designated Directors shall not be
required for the taking of any such action, nor shall any action be invalidated
based upon the failure of such Xxx Designated Directors to notify and discuss
such actions with the other Directors.
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2.3. SUCCESSORS. In the event that any SCP Designated Director shall
cease to serve for any reason, then the SCP Majority Holders shall have the
right to designate a successor SCP Designated Director, and in the event that
any Xxx Designated Director shall cease to serve for any reason, then the Xxx
Majority Holders shall have the right to designate a successor Xxx Designated
Director. In the event that any Employee Designated Director shall cease to
serve for any reason, then the following shall apply: (i) at such time as any
one or more of the Employee Designated Directors shall cease to serve as an
Employee Designated Director and the initial Chairman of JHFSC shall continue to
serve as an Employee Designated Director, then the initial Chairman of JHFSC
shall have the right to designate one or more successor Employee Designated
Directors (which individual or individuals shall not have been terminated
pursuant to Section 2.2) from among those individuals who have held positions at
least equal to a senior vice president of the Company, JHFSC, Xxxxxx Xxxxxxx,
Sutro or Freedom Capital for the immediately preceding year, and (ii) at such
time as the initial Chairman of JHFSC shall cease to serve as an Employee
Designated Director and the other initial Employee Designated Directors shall
continue to serve as Employee Designated Directors, then the individual who is
chosen by the Xxx Designated Directors as the successor Chief Executive Officer
of JHFSC shall become the successor Employee Designated Director, and (iii) at
such time as the initial Chairman of JHFSC and one or more of the other initial
Employee Designated Directors shall cease to serve as Employee Designated
Directors, then the individual who is elected as the successor Chief Executive
Officer of JHFSC shall replace the initial Chairman as one Employee Designated
Director and the Employee Majority Holders shall have the right to nominate the
other successor Employee Designated Directors from among those individuals who
hold positions at least equal to a senior vice president of the Company, JHFSC,
Xxxxxx Xxxxxxx, Sutro or Freedom Capital. Each holder of Voting Shares (other
than a holder of Seller Securities) shall, upon receipt of notice identifying
such nominee, promptly take all action necessary to cause the appointment of
such nominee to the Board pursuant to the Company's By-laws and Certificate of
Incorporation, each as amended and in effect from time to time.
2.4. COMMITTEES. Each committee of the Board shall be composed so
that the representation thereof of Xxx Designated Directors, SCP Designated
Director and Employee Designated Directors shall be in the same proportion, as
nearly as may be, as the representation of such directors on the whole Board
unless otherwise agreed to by the Board. Notwithstanding the foregoing, the
Compensation Committee of the Board will include the Chief Executive Officer of
the Company, provided that such Chief Executive Officer shall not vote with
respect any matter regarding his own compensation, which Compensation Committee
shall be empowered, among other things, to select Designated Employees pursuant
to Sections 3.1 and 4 of this Agreement.
2.5. CERTAIN LIQUIDITY TRANSACTIONS. Each holder of Securities agrees
to cast all votes to which such holder is entitled in respect of the Voting
Shares now or hereafter owned by such
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holder, and to cause any directors designated by such holder of Securities
pursuant to Section 2.1 or 2.3 to vote, in the manner specified by the Xxx
Majority Holders or Xxx Designated Directors, as the case may be, with respect
to: (i) any offering of securities of the Company; (ii) any sale of a
substantial portion of the assets of the Company or any of its Subsidiaries;
(iii) any merger or consolidation involving the Company or any of its
Subsidiaries; and (iv) any transaction to which Section 5 or 6 applies. The Xxx
Investors hereby acknowledge and agree that prior to taking any action set forth
in this Section 2.5, they will cause the Xxx Designated Directors to notify and
discuss such action with the other members of the Board, it being acknowledged
and agreed that the consent of the SCP Designated Director and the Employee
Designated Directors shall not be required for the taking of any such action,
nor shall any action be invalidated based upon the failure of such Xxx
Designated Directors to notify and discuss such actions with the other
Directors.
2.6. PERIOD. The foregoing provisions of this Section 2 shall expire
on the earliest of: (i) the tenth anniversary of the date hereof; (ii) the date
of termination of this Agreement; (iii) the first date on which the Xxx
Investors own less than thirty-three and one-third percent (33 1/3%) of the
aggregate Xxx Securities held by the Xxx Investors immediately after the closing
under the Contribution Agreement; or (iv) upon the closing of the Initial Public
Offering; PROVIDED, HOWEVER, that in the case of clause (iii) above, the holders
of Xxx Securities, SCP Securities and Employee Securities shall continue to have
the right to designate a number of Directors on the Board which is proportional
to the aggregate percentage of Securities held by such Investors to the total
number of Securities then outstanding (which in the case of the holders of Xxx
Securities, shall not in any event be less than two such Directors); and
PROVIDED, FURTHER, that if the holders of SCP Securities shall Transfer all of
such Securities to any holder of Xxx Securities, then the Xxx Majority Holders
shall have the right to designate one additional director on behalf of the
holders of Xxx Securities, and if the holders of SCP Securities shall Transfer
all of such Securities to any holders of Employee Securities or to any
Designated Employees, then the Employee Majority Holders shall have the right to
designate one additional director on behalf of the holders of Employee
Securities, in each case which additional director shall replace the SCP
Designated Director.
3. CERTAIN TRANSFER RIGHTS AND RESTRICTIONS. No holder of any
Security shall sell, pledge, assign, grant a participation interest in, encumber
or otherwise transfer or dispose of any of such Securities to any other Person,
whether directly, indirectly, voluntarily, involuntarily, by operation of law,
pursuant to judicial process or otherwise (a "TRANSFER"), except as permitted by
this Section 3. Any attempted Transfer of Securities not permitted by this
Section 3 shall be null and void, and the Company shall not in any way give
effect to any such impermissible Transfer. Notwithstanding the foregoing, this
Section 3 shall not prohibit any Transfers made on the terms and subject to the
conditions of Sections 4, 5, 6 and 7 or to the
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public through a broker, dealer or market maker pursuant to Rule 144 after the
Initial Public Offering. Prior to any registration by the Company under the
Exchange Act, no Investor shall Transfer any Securities if the result of such
Transfer shall be to increase the total number of holders of the Company's
Common Stock then outstanding without the Company's prior consent, which consent
may be withheld by the Company if it reasonably believes that withholding such
consent will reduce the likelihood that the Company would be required to
register its Common Stock under the Exchange Act. Notwithstanding any provision
herein contained to the contrary, no holder of Employee Securities shall
Transfer any such Securities to a Competitor Institution without the prior
written consent of the Company.
3.1. TRANSFERS OF EMPLOYEE SECURITIES. No holder of any Employee
Security shall Transfer any Employee Security to any Person except as provided
by this Section 3.1.
3.1.1. RIGHTS OF FIRST REFUSAL. If any Employee Investor (the
"EMPLOYEE INITIATING PARTY") desires to Transfer Securities to any
Person other than the Company, prior to Such Transfer, such Employee
Initiating Party shall give notice of such offer to the Company. Such
notice (the "TRANSFER NOTICE") shall state the terms and conditions of
such offer, including the name of the prospective purchaser, the
proposed purchase price per share of such Securities, payment terms, the
type of disposition and the number of shares of such Securities to be
transferred (the "FIRST REFUSAL SECURITIES") and any other material
terms and conditions of the proposed Transfer. For a period of
forty-five (45) days following the receipt of the Transfer Notice (the
"FIRST REFUSAL PERIOD"), the Company shall have the right to elect to
purchase any First Refusal Securities specified in the Transfer Notice
at the price and upon the terms set forth in the Transfer Notice. In the
event that the Company elects to purchase part or all of the First
Refusal Securities, it shall give written notice, during the First
Refusal Period, to the Employee Initiating Party of its election. In the
event that the Company elects to purchase the First Refusal Securities,
the Company shall purchase all such First Refusal Securities for such
price, within ninety (90) days after the date the Company receives the
Transfer Notice. The Company may elect to assign its right to purchase
any First Refusal Securities to an eligible employee designated by the
Compensation Committee of the Board (a "DESIGNATED EMPLOYEE").
Notwithstanding anything to the contrary in this Section 3.1.1,
in the event that all of the First Refusal Securities specified in the
Transfer Notice are not purchased by the Company or the Designated
Employee, as the case may be within such ninety (90) day period, then
neither the Company nor the Designated Employee shall have any right to
purchase any such First Refusal Securities, and the Employee Initiating
Party may, within the ninety (90) day period following the expiration of
the First Refusal Period, subject to compliance with Sections 5 and 6,
sell the First Refusal Securities specified in the Transfer
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Notice to the proposed transferee upon the price and terms specified in
the Transfer Notice; PROVIDED, HOWEVER, that if such First Refusal
Securities are not sold within the ninety (90) day period, such First
Refusal Securities shall again become subject to all the restrictions
set forth in this Section 3.1. Any Transfer of shares of First Refusal
Securities consummated pursuant to this Section 3.1 shall remain subject
to the provisions of this Agreement, and the intended transferee
pursuant to this Section shall, as a condition to the effectiveness of
such Transfer, execute and deliver to the Company a counterpart of this
Agreement, which shall evidence such transferee's agreement that the
shares intended to be transferred shall continue to be subject to this
Agreement to the same extent as the Investor who transferred such First
Refusal Securities.
3.1.2. INAPPLICABLE TRANSFERS. The provisions of Section 3.1.1
shall not apply to (i) a Transfer of all of such holder's Employee
Securities to a Member of the Immediate Family of such holder who is not
employed by a Competitor Institution, (ii) a Transfer of all of such
holder's Employee Securities by will or other instrument taking effect
at death or by applicable laws of descent and distribution to such
holder's estate, executors, administrators and personal representations,
and then to such holder's heirs, legatees distributions (provided that
such Transfer shall only be effective as to one such transferee), (iii)
a Transfer of any portion of such holder's Employee Securities to the
Company or to a Designated Employee in compliance with Section 3.3, or
(iv) a pledge of any portion of such holder's Employee Securities to a
bank or other financial institution (other than a Competitor
Institution) to secure any bona fide recourse debt of such holder to
such bank or financial institution for borrowed money in connection with
the purchase of Common Stock; PROVIDED, HOWEVER, that no such Transfer
(other than to the Company) pursuant to this Section 3.1.2 shall be
effective until the recipient has delivered to the Company a written
acknowledgment and agreement in form and substance reasonably
satisfactory to the Company that the Employee Securities to be received
by such recipient are subject to all of the provisions of this Agreement
and that such recipient is bound hereby and a party hereto to the same
extent as an Employee Investor, and in the case of any pledgee pursuant
to clause (iv) above, an acknowledgment that the Employee Securities
subject to such pledge shall remain (both before and after foreclosure,
if any) subject to all of the terms and provisions hereof as Employee
Securities; and PROVIDED, FURTHER, that any transfer of an Option shall
be subject to all of the terms and conditions of such Option, or the
plan under which such Option was issued, in addition to the terms and
conditions hereof.
3.2. TRANSFERS BY HOLDERS OF FUND SECURITIES AND SELLER SECURITIES.
No holder of Xxx Securities, SCP Securities or Seller Securities shall Transfer
any Securities held by such Investor to any Person except as provided by this
Section 3.2.
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3.2.1. RIGHTS OF FIRST OFFER. If any holder of Xxx Securities,
SCP Securities or Seller Securities (each a "NON-EMPLOYEE INITIATING
PARTY") desires to Transfer any of the Securities held by such party
(the "OFFERED SECURITIES") to any Person other than the Company, then
the Non-Employee Initiating Party shall give written notice to the
Company to the effect that such Non-Employee Initiating Party would like
to Transfer such Securities, indicating the number and type of
securities proposed to be Transferred. Within thirty (30) days following
receipt of such written notice (the "OFFER PERIOD"), the Company may
elect to submit a written proposal (an "OFFER PROPOSAL") to purchase no
less than all of the Offered Securities at a price and on terms
specified in such Offer Proposal. If the Company does not furnish a
written proposal within the Offer Period, then, subject to compliance
with Sections 5 and 6, such Non-Employee Initiating Party may sell the
Offered Securities within one hundred eighty (180) days following the
expiration of the Offer Period to any other Person. If the Company
delivers the Offer Proposal within the Offer Period, the Non-Employee
Initiating Party must accept or reject such Offer Proposal within thirty
(30) days following receipt of such Offer Proposal. If the Non-Employee
Initiating Party rejects the Offer Proposal, then, subject to compliance
with Sections 5 and 6, such Non-Employee Initiating Party may sell to
any other Person the Offered Securities within one hundred eighty (180)
days following the date of rejection of the Offer Proposal at a price
which is higher than the price specified in the Offer Notice. If such
Offered Securities are subsequently proposed to be Transferred to
another Person at a price which is equal to or lower than the price
specified in the Offer Proposal, then such Offered Securities shall be
re-offered by the Non-Employee Initiating Party to the Company in
accordance with the terms of this Section 3.2. For purposes of this
Section 3.2, if the price contained in any Offer Proposal or any
proposal of any other Person shall not be payable solely in cash, then
"price" shall be determined in the reasonable judgment of the
Non-Employee Initiating Party upon review of the total amount of cash,
securities, debt instruments or other forms of consideration comprising
the purchase price for the Offered Securities, if any.
Notwithstanding the foregoing, (i) no holder of Seller
Securities shall Transfer all or any portion of such Seller Securities
to a Competitor Institution (unless pursuant to a Sale of all Securities
under Sections 5 and 6), and (ii) no Transfer to any Person other than
the Company pursuant to this Section 3.2 shall be effective until the
recipient has delivered to the Company a written acknowledgment and
agreement in form and substance reasonably satisfactory to the Company
that the Offered Securities to be received by such recipient are subject
to all of the provisions of this Agreement and that such recipient is
bound hereby and a party hereto to the same extent as the Non-Employee
Initiating Party, except that notwithstanding Section 9, transferees of
Seller Securities shall not have any inspection rights and shall have
only those information rights entitling them to receive
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annual and quarterly financial statements of the Company and its
Subsidiaries required to be furnished under such Section.
3.2.2. INAPPLICABLE TRANSFERS. The provisions of Section 3.2.1
shall not be applicable to (i) a Transfer by a holder of Fund Securities
to a Fund Investor or an Affiliated Fund or to any trust established for
the benefit of partners of a Fund Investor or an Affiliated Fund or pro
rata to the partners of a Fund Investor or an Affiliated Fund, provided
that prior to any registration by the Company under the Exchange Act,
such Transfers in the case of the holders of SCP Securities shall not
result in an aggregate of more than 5 record holders of SCP Securities
at any one time, and in the case of the holders of Xxx Securities, shall
not result in an aggregate of more than 5 record holders of Xxx
Securities at any one time, (ii) a Transfer of all of such holder's Fund
Securities to a Member of the Immediate Family of such holder who is not
employed by a Competitor Institution, (iii) a Transfer of all of such
holder's Fund Securities by will or other instrument taking effect at
death or by applicable laws of descent and distribution to such holder's
estate, executors, administrators and personal representations, and then
to such holder's heirs, legatees distributions (provided that such
Transfer shall only be effective as to one such transferee), (iv) a
pledge of any portion of such holder's Fund Securities to a bank or
other financial institution (other than a Competitor Institution) to
secure any bona fide recourse debt of such holder to such bank or
financial institution, (v) a Transfer by a holder of Fund Securities to
the Company or a Designated Employee or (vi) a Transfer by a holder of
Seller Securities to any Affiliate thereof; PROVIDED, HOWEVER, that no
such Transfer (other than to the Company) pursuant to this Section 3.2.2
shall be effective until the recipient has delivered to the Company a
written acknowledgment and agreement in form and substance reasonably
satisfactory to the Company that the Securities to be received by such
recipient are subject to all of the provisions of this Agreement and
that such recipient is bound hereby and a party hereto to the same
extent as the applicable Investor, and in the case of any pledgee
pursuant to clause (iv) above, an acknowledgment that the Fund
Securities subject to such pledge shall remain (both before and after
foreclosure, if any) subject to all of the terms and provisions hereof
as the holder of the applicable Fund Securities.
3.3. TRANSFERS OF EMPLOYEE SECURITIES TO THE COMPANY. If any holder
of Employee Securities desires to Transfer any portion of such Investor's
Securities to the Company, such holder may give written notice to the Company of
such proposed Transfer. Upon receipt of any such written notice, the Company may
accept or reject such written proposal to purchase Employee Securities in its
sole discretion, and may assign its right to purchase such Securities to a
Designated Employee. The purchase price of any Securities purchased by the
Company or any
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Designated Employee pursuant to this Section 3.3 shall be at the then Book Value
of such Securities.
3.4. PERIOD. The foregoing provisions of this Section 3 shall terminate
immediately following the closing of the Initial Public Offering.
3.5. LOCK UP. Notwithstanding any provision to the contrary contained
in this Section 3, no Transfer may be made pursuant to this Section 3 except in
compliance with the provisions of Section 7.5 hereof.
4. CALL OPTIONS TO PURCHASE SECURITIES.
4.1. CALL OPTIONS ON EMPLOYEE SECURITIES UPON TERMINATION OF
EMPLOYMENT. Upon any termination of the employment of any Employee Investor who
is employed by the Company or any of its Subsidiaries, the Company shall have
the right to purchase any or all Securities held by such Employee Investor or by
Employee Transferees of such Employee Investor (collectively, the "CALL EMPLOYEE
INVESTOR GROUP"), at the Company's sole option, for cash or, in the event that
the Board of Directors determines in good faith that the Company does not have
sufficient liquidity or is otherwise restricted under its financing agreements
from paying such distribution in cash, for a five year note issued by the
Company, bearing interest at a fixed rate of interest per annum equal to the
applicable federal rate on the date of issuance for notes of that maturity, such
interest to be payable quarterly in arrears, which note shall be prepayable
without premium or penalty, and subordinated to all other funded debt of the
Company and its Subsidiaries on terms reasonably satisfactory to the holders of
such funded debt (each a "COMPANY NOTE", and collectively, the "COMPANY NOTES");
it being understood that all Options not exercisable at the time of such
termination of employment will be terminated pursuant to the option plan
pursuant to which such Option was issued. If the Company elects to exercise its
call right pursuant to this Section 4.1, it shall furnish to the Call Employee
Investor Group written notice within thirty (30) days following such date of
termination of employment, or within thirty (30) days following receipt by the
Company of audited financial statements of the Company for any fiscal year ended
after such date of termination. The purchase price for such Employee Securities
shall be payable in cash or in Company Notes, at a price equal to the Book Value
of such Securities on the date of exercise by the Company of such call right.
Notwithstanding the foregoing, the provisions of this Section 4.1 shall not
apply to any Employee Securities issued upon exercise of a right to purchase
shares of Common Stock granted to any Employee Investor under the Company's
Stock Incentive Plan adopted pursuant to Rule 701 under the Securities Act, the
terms and provisions of which Plan shall govern the call rights of the Company
to repurchase shares issued thereunder.
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4.2. CALL OPTIONS ON SECURITIES PLEDGED TO FINANCIAL INSTITUTION. If
any bank or financial institution to which Securities are pledged pursuant to
Section 3.1.2(iv) forecloses on any such Securities, then the Company, upon
written notice furnished at any time following the Transfer of such Securities
to such bank or financial institution may purchase all or any portion of such
Securities at a price, payable in cash, equal to the then Book Value of such
Securities.
4.3. ASSIGNMENT OF CALL RIGHT. The Company may assign to a Designated
Employee the right to purchase any Securities held by the Call Employee Investor
Group or bank or other financial institution as the case may be, upon the
exercise of any call right pursuant to this Section 4; PROVIDED, HOWEVER, that
the price paid by the Designated Employee shall only be paid in cash.
4.4. CLOSING. The closing of the purchase of any Securities pursuant to
the exercise of the call option shall take place no later than 30 days from the
date the call notice was given by the Company, at the principal office of the
Company or at such other time and location as the parties to such purchase may
mutually determine. At the closing, the Company shall pay to the Call Employee
Investor Group or bank or other financial institution, as the case may be, the
call price for the Securities to be purchased pursuant to the call option in
cash by certified or bank check or by the issuance of a Company Note. At such
time, the Call Employee Investor Group or bank or other financial institution,
as the case may be, shall deliver to the Company the certificate or certificates
representing the Securities so purchased, each duly endorsed for transfer and
with signature guaranteed, free and clear of any liens, with any necessary stock
transfer tax stamps affixed.
4.5. PERIOD. The foregoing provisions of this Section 4 shall terminate
immediately following the closing of the Initial Public Offering.
5. "TAKE ALONG" RIGHTS. Subject to compliance with Section 3, each
holder of Securities hereby agrees, if requested by the Xxx Majority Holders, to
Transfer for value (for purposes of this Section 5, a "SALE") all or a portion
of the Securities then owned by such holder to any Person, other than any Person
which is an Affiliate of any holder of Xxx Securities (for purposes of this
Section 5, the "PROPOSED BUYER") in the manner and on the terms set forth in
this Section 5 in connection with the Sale by the holders of Xxx Securities
(collectively, the "PROPOSED FUND SELLER") pursuant to a transaction (i) in
which the Proposed Fund Seller sells all of the Xxx Securities held by them to
the Proposed Buyer or (ii) in which immediately following the consummation of
such transaction, the holders of Securities will retain no more than twenty
percent (20%) of all issued and outstanding shares of Common Stock of the
Company (the "Retained Securities") and the Proposed Fund Seller sells all of
the Xxx Securities other than its pro rata share of the Retained Securities in
such transaction.
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5.1. PROCEDURE. If the Xxx Majority Holders elect to exercise their
rights under this Section 5, a notice (the "TAKE ALONG NOTICE") shall be
furnished by the Proposed Fund Seller to each holder of Securities (which shall
be furnished to the Compensation Committee of the Board on behalf of each holder
of Employee Securities). The Take Along Notice shall set forth the principal
terms of the proposed Sale insofar as it relates to the Securities, including
the number of Securities to be purchased from the Proposed Fund Seller, the
maximum and minimum purchase price, and the name and address of the Proposed
Buyer. If the Xxx Majority Holders consummate the Sale referred to in the Take
Along Notice, each other holder of Securities (each a "PARTICIPATING SELLER")
shall be bound and obligated to Sell all of such Participating Seller's
Securities in the Sale on the same terms and conditions (subject to all of the
provisions of this Agreement), with respect to each Security sold, as the
Proposed Fund Seller shall sell each Xxx Security in the Sale, and, in the case
of Options have the obligation to either (i) exercise such Options (if then
exercisable) and participate in such Sale as holders of Common Stock issuable
upon such exercise, or (ii) upon the consummation of the Sale, receive in
exchange for such Options (to the extent exercisable at the time of such Sale)
consideration equal to the amount (if greater than zero) determined by
multiplying (1) the same amount of consideration per Share received by the
holders of the Common Stock in connection with the Sale less the exercise price
per share of such Option by (2) the number of shares of Common Stock issuable
upon exercise of such Option. If at the end of the one year anniversary of the
date of the effectiveness of the Take Along Notice the Proposed Fund Seller has
not completed the Sale, each Participating Seller shall be released from his
obligation under the Take Along Notice, the Take Along Notice shall be null and
void, and it shall be necessary for a separate Take Along Notice to have been
furnished and the terms and provisions of this Section 5 separately complied
with, in order to consummate such Sale pursuant to this Section 5, unless the
failure to complete such Sale resulted from any failure by any Participating
Seller to comply in any material respect with the terms of this Section 5.
5.2. CERTAIN LEGAL REQUIREMENTS. In the event the consideration to be
paid in exchange for Securities in the proposed Sale pursuant to Section 5.1
includes any securities and the receipt thereof by any Investor as a
Participating Seller would require under applicable law (i) the registration or
qualification of such securities or of any person as a broker or dealer or agent
with respect to such securities or (ii) the provision to any participant in the
Sale of any information other than such information as would be required under
Regulation D of the Securities and Exchange Commission or similar rule then in
effect in an offering made pursuant to said Regulation D solely to "accredited
investors" as defined in said Regulation D, the Proposed Fund Seller shall be
obligated to use all commercially reasonable efforts to cause such requirements
to have been complied with to the extent necessary to permit such Participating
Seller to receive such securities. Each Participating Seller agrees to take such
actions as the Proposed Fund Seller shall reasonably request in order to permit
such requirements to have been complied with.
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5.3. FURTHER ASSURANCES. Each Participating Seller, and each Investor
to whom the Securities held by such Participating Seller were originally issued,
shall, whether in his capacity as a Participating Seller, stockholder, officer
or director of the Company, or otherwise, take or cause to be taken all such
actions (subject to all the provisions of this Agreement) as may be reasonably
requested in order expeditiously to consummate each Sale pursuant to Section
5.1. Each such Participating Seller or Investor agrees to execute and deliver
such agreements that are reasonably requested in connection with the Sale so
that the Participating Seller to be subject to the same terms and conditions
(subject to all of the provisions of this Agreement) with respect to each
Security sold as the Proposed Fund Seller shall Sell each Fund Security in the
Sale, including, without limitation, an agreement by such Participating Seller
(i) to be subject to such purchase price escrow, indemnity or adjustment
provisions as may apply to Investors generally, (ii) to be liable in respect of
any individual representations or warranties to be given by selling Investors in
the Sale regarding such matters as legal capacity or due organization of such
Participating Seller, authority to participate in the Sale, compliance by such
selling Investor with laws and agreements applicable to it, and ownership (free
and clear of liens, charges, encumbrances and adverse claims) of Securities to
be sold by such Participating Seller ("INDIVIDUAL REPRESENTATIONS") (insofar as
such Individual Representations relate to such Participating Seller) and (iii)
except with respect to the Seller Investors, to make any general representations
or warranties to be given by selling Investors in the Sale regarding such
matters as the liabilities (contingent and otherwise), assets, agreements and
business of the Company and its Subsidiaries, the compliance of the Sale with
laws and contracts, and the adequacy of disclosure ("GENERAL REPRESENTATIONS");
PROVIDED, HOWEVER, that except with respect to Individual Representations, the
aggregate amount of the liability of each Participating Seller in the Sale in
respect of representations, warranties and indemnities shall not exceed the
lesser of (i) such Participating Seller's pro rata portion of any such
liability, in accordance with such Participating Seller's portion of the total
number of Securities included in the Sale or (ii) the net proceeds received by
such Participating Seller from the Sale; and PROVIDED, FURTHER, that no
Participating Seller who is an Employee Investor, SCP Investor or Seller
Investor shall be required as a condition of such Sale to be bound by any
non-competition, non-solicitation, no-hire or similar covenant applicable to the
holders of Xxx Securities, provided that the foregoing shall not be deemed to
limit or otherwise affect the assignability of the non-competition provisions of
the Contribution Agreement which are applicable to the Seller Initial Investor.
5.4. CLOSING. The closing of a Sale pursuant to Section 5.1 shall take
place at such time and place as the Xxx Majority Holders shall specify by notice
to each Participating Seller. At the closing of any Sale under this Section 5,
each Participating Seller shall deliver the certificates evidencing the
Securities to be sold by such Participating Seller, duly endorsed, or with stock
powers or other appropriate instruments duly endorsed, for transfer with
signature guaranteed,
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free and clear of any liens, encumbrances or adverse claims, with any stock
transfer tax stamps affixed, against delivery of the applicable consideration.
5.5. PERIOD. The foregoing provisions of this Section 5 shall terminate
immediately following the closing of the Initial Public Offering.
6. CO-SALE RIGHTS.
6.1. TAG ALONG. Subject to compliance with Section 3, no holder or
holders of any Securities (for purposes of this Section 6, collectively, the
"PROPOSED SELLER") shall Transfer (for purposes of this Section 6, a "SALE") any
of such Investor's Securities to any other Person (the "PROPOSED BUYER") except
in the manner and on the terms set forth in this Section 6, and attempted
Transfers in violation of this Section 6 shall be null and void.
6.1.1. OFFER. A written notice (the "TAG ALONG NOTICE") shall be
furnished by the Proposed Seller to each holder of Securities (the "TAG
ALONG OFFEREES") at least five (5) business days prior to a Transfer. The
Tag Along Notice shall include:
(a) The principal terms of the proposed Sale insofar as
it relates to the Securities, including the number of Securities
to be purchased from the Proposed Seller, the percentage on a
fully-diluted basis of the total number of Securities held by all
holders of Securities which such number of Securities constitutes
(for purposes of this Section 6, the "SALE PERCENTAGE"), the
maximum and minimum purchase price (which maximum purchase price
shall not exceed the minimum price by more than 110%), the name
and address of the Proposed Buyer, and (if the Proposed Buyer is
not subject to the periodic reporting requirements of the Exchange
Act) the name of each director of the Proposed Buyer and of each
Person which is the beneficial owner of more than five percent
(5%) of the Common Stock of the Proposed Buyer; and
(b) An offer by the Proposed Seller to include, at the
option of each Tag Along Offeree, in the Sale to the Proposed
Buyer such number of Securities (not in any event to exceed the
Sale Percentage of the total number of Securities held by such Tag
Along Offeree) owned by each Tag Along Offeree determined in
accordance with Section 6.1.2 hereof, on the same terms and
conditions (subject to all of the provisions of this Agreement),
with respect to each Security Sold, as the Proposed Seller shall
Sell each of its Securities.
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6.1.2. EXERCISE. Each Tag Along Offeree desiring to accept the
offer contained in the Tag Along Notice shall send a written commitment
to the Proposed Seller specifying the number of Securities (not in any
event to exceed the Sale Percentage of the total number of Securities
held by such Tag Along Offeree) which such Tag Along Offeree desires to
have included in the Sale within five (5) business days after the
effectiveness of the Tag Along Notice (each a "PARTICIPATING SELLER").
Each Tag Along Offeree who has not so accepted such offer shall be deemed
to have waived all of his or her rights with respect to the Sale, and the
Proposed Seller and the Participating Sellers shall thereafter be free to
Sell to the Proposed Buyer, at a price no greater than 110% of the
maximum price set forth in the Tag Along Notice and otherwise on terms
not more favorable in any material respect to them than those set forth
in the Tag Along Notice, without any further obligation to such
non-accepting Tag Along Offerees. If, prior to consummation, the terms of
such proposed Sale shall change with the result that the price shall be
greater than 110% of the maximum price set forth in the Tag Along Notice
or the other terms shall be more favorable in any material respect than
as set forth in the Tag Along Notice, it shall be necessary for a
separate Tag Along Notice to have been furnished, and the terms and
provisions of this Section 6 separately complied with, in order to
consummate such proposed Sale pursuant to this Section 6.
The acceptance of each Participating Seller shall be irrevocable
except as hereinafter provided, and each such Participating Seller shall
be bound and obligated to Sell in the Sale such number of Securities as
such Participating Seller shall have specified in such Participating
Seller's written commitment on the same terms and conditions (subject to
all of the provisions of this Agreement), with respect to each Security
Sold, as the Proposed Seller shall sell each Security in the Sale, and,
in the case of Options, have the opportunity to either (i) exercise such
Options (if then exercisable) and participate in such Sale as holders of
Common Stock issuable upon such exercise or (ii) upon the consummation of
the Sale, receive in exchange for such Options (to the extent exercisable
at the time of such Sale) consideration equal to the amount (if greater
than zero) determined by multiplying (1) the same amount of consideration
per Share received by the holders of the Common Stock in connection with
the Sale less the exercise price per share of such Option by (2) the
number of shares of Common Stock issuable upon exercise of such Option.
In the event the Proposed Seller shall be unable (otherwise than by
reason of the circumstances described in Section 6.2) to obtain the
inclusion in the Sale of all Securities which the Proposed Seller and
each Participating Seller desires to have included in the Sale (as
evidenced in the case of the Proposed Seller by the Tag Along Notice and
in the case of each Participating Seller by such Participating Seller's
written commitment), the number of Securities to be sold in the Sale by
the Proposed Seller and each Participating Seller shall be reduced on a
pro rata basis according to the proportion which
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the number of Securities which each such Seller desires to have included
in the Sale bears to the total number of Securities desired by all such
Sellers to have included in the Sale.
If at the end of the one hundred eightieth (180th) day following
the date of the effectiveness of the Tag Along Notice the Proposed Seller
has not completed the Sale as provided in the foregoing provisions of
this Section 6.1, each Participating Seller shall be released from his
obligations under his written commitment, the Tag Along Notice shall be
null and void, and it shall be necessary for a separate Tag Along Notice
to have been furnished, and the terms and provisions of this Section 6
separately complied with, in order to consummate such Sale pursuant to
this Section 6, unless the failure to complete such Sale resulted from
any failure by any Tag Along Offeree to comply in any material respect
with the terms of this Section 6.
6.2. CERTAIN LEGAL REQUIREMENTS. In the event the consideration to be
paid in exchange for Securities in the proposed Sale pursuant to Section 6.1
includes any securities and the receipt thereof by any Investor as a
Participating Seller would require under applicable law (i) the registration or
qualification of such securities or of any person as a broker or dealer or agent
with respect to such securities or (ii) the provision to any participant in the
Sale of any information other than such information as would be required under
Regulation D of the Securities and Exchange Commission or similar rule then in
effect in an offering made pursuant to said Regulation D solely to "accredited
investors" as defined in said Regulation D, the Proposed Seller shall be
obligated to use all commercially reasonable efforts to cause such requirements
to have been complied with to the extent necessary to permit such Participating
Seller to receive such securities. Each Participating Seller agrees to take such
actions as the Proposed Seller shall reasonably request in order to permit such
requirements to have been complied with.
6.3. FURTHER ASSURANCES. Each Participating Seller, and each Investor
to whom the Securities held by such Participating Seller were originally issued,
shall, whether in his capacity as a Participating Seller, stockholder, officer
or director of the Company, or otherwise, take or cause to be taken all such
actions (subject to all the provisions of this Agreement) as may be reasonably
requested in order expeditiously to consummate each Sale pursuant to Section
6.1. Each such Participating Seller or Investor agrees to execute and deliver
such agreements as may be necessary for the Participating Seller to be subject
to the same terms and conditions (subject to all of the provisions of this
Agreement) with respect to each Security sold as the Proposed Seller shall Sell
each Security in the Sale, including, without limitation, an agreement by such
Participating Seller (i) to be subject to such purchase price escrow, indemnity
or adjustment provisions as may apply to Investors generally, (ii) to be liable
in respect of any Individual Representations to be given by selling Investors in
the Sale (insofar as such Individual Representations relate to such
Participating Seller) and (iii) except with respect to the Seller
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Investors, to make any General Representations to be given by selling Investors
in the Sale; PROVIDED, HOWEVER, that except with respect to Individual
Representations, the aggregate amount of the liability of each Participating
Seller in respect of representations, warranties and indemnities shall not
exceed the lesser of (i) such Participating Seller's pro rata portion of any
such liability, in accordance with such Participating Seller's portion of the
total number of Securities included in the Sale or (ii) the net proceeds
received by such Participating Seller from the Sale; and PROVIDED, FURTHER, that
no Participating Seller who is an Employee Investor, SCP Investor or Seller
Investor shall be required as a condition of such Sale to be bound by any
non-competition, non-solicitation, no-hire or similar covenant applicable to the
holders of Xxx Securities, provided that the foregoing shall not be deemed to
limit or otherwise affect the assignability of the non-competition provisions of
the Contribution Agreement which are applicable to the Seller Initial Investor.
6.4. CLOSING. The closing of a Sale pursuant to Section 6.1 shall take
place at such time and place as the Proposed Seller shall specify by notice to
each Participating Seller. At the closing of any Sale under this Section 6,
each Participating Seller shall deliver the certificates evidencing the
Securities to be sold by such Participating Seller, duly endorsed, or with stock
powers or other appropriate instruments duly endorsed, for transfer with
signature guaranteed, free and clear of any liens, encumbrances or adverse
claims, with any stock transfer tax stamps affixed, against delivery of the
applicable consideration.
6.5. EXCLUDED TRANSACTIONS. Notwithstanding any provisions of this
Section 6 to the contrary and subject to the provisions of Section 7 below, the
preceding provisions of this Section 6 shall not restrict any Transfer pursuant
to the provisions of Section 5 or 7 of this Agreement; and no holder of
Securities shall have pursuant to the provisions of this Section 6 any right of
participation or otherwise with respect to (i) any Transfer of Securities
permitted by Sections 3.1.2, 3.2.2 and 3.3, (ii) any Transfer of Seller
Securities, or (iii) any Transfers of Securities in connection with a Public
Offering or under Rule 144. Notwithstanding the provisions of the immediately
preceding sentence, no Transfer of Securities (other than to the Company) shall
be effective until the recipient has delivered to the Company a written
acknowledgment and agreement in form and substance reasonably satisfactory to
the Company that all Securities to be received by such recipient are subject to
all of the provisions of this Agreement and that such recipient is bound hereby
and a party hereto to the same extent as the applicable Investor effecting such
Transfer.
6.6. PERIOD. The foregoing provisions of this Section 6 shall terminate
immediately following the closing of the Initial Public Offering, except in the
case of any Block Transaction.
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7. REGISTRATION RIGHTS. The Company will perform and comply, and
cause each of its Subsidiaries to perform and comply, with such of following
provisions as are applicable to it. Each holder of Securities will perform and
comply with such of the following provisions as are applicable to such holder.
7.1. PIGGYBACK REGISTRATION RIGHTS.
7.1.1. ELECTION. Whenever the Company proposes to register on Form
X-x, X-0 or S-3 (or any successor form) any shares of Common Stock for
its own or others' account under the Securities Act for a public offering
(each a "PUBLIC OFFERING"), the Company shall furnish each holder of
Registrable Securities prompt notice of its intent to do so. Upon the
request of any such holder given by notice to the Company within twenty
(20) days after the effectiveness of such notice from the Company, the
Company will use its reasonable best efforts to cause to be included in
such registration all of the Registrable Securities which such holder
requests.
7.1.2. FURTHER ASSURANCES. Holders of Registrable Securities
participating in any Public Offering shall take all such actions and
execute all such documents and instruments that are reasonably requested
by the Company to effect the sale of their Registrable Securities in such
Public Offering, including without limitation being parties to the
underwriting agreement entered into by the Company and any other selling
shareholders in connection therewith and being liable in respect of the
representations and warranties being made by each selling shareholder,
and any indemnification agreements and "lock-up" agreements made by each
selling shareholder for the benefit of the underwriters in such
underwriting agreement.
7.1.3. EXPENSES. The Company shall pay all expenses of the holders
of Registrable Securities participating in any Public Offering pursuant
to this Section 7.1, other than (i) underwriting discounts and
commissions, if any, (ii) applicable transfer taxes, if any, and (iii)
fees and charges of any attorneys or other advisors (other than attorneys
and advisors retained by the Company to advise it in connection with such
Public Offering and one counsel retained to advise all holders of
Registrable Securities in connection with such Public Offering) retained
by any such holders.
7.1.4. EXCLUDED TRANSACTIONS. Notwithstanding the preceding
provisions of this Section 7.1, no holder of Registrable Securities shall
have any right of participation or otherwise with respect to the
following Public Offerings:
(a) Any Public Offering relating primarily to employee
benefit plans, or
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(b) Any Public Offering the proceeds of which are used
principally to finance the acquisition after the date hereof by
the Company or any of its Subsidiaries of any acquired business or
any Public Offering constituting an exchange of securities for
securities of any such acquired business.
7.2. DEMAND REGISTRATION RIGHTS.
7.2.1. REGISTRATION ON REQUEST OF HOLDERS OF FUND SECURITIES. The
Xxx Majority Holders (as to such registration, the "INITIATING HOLDERS")
may, by notice to the Company specifying the intended method or methods
of disposition, request that the Company effect the registration under
the Securities Act of all or a specified part of the Registrable
Securities held by such Initiating Holders. Promptly after receipt of
such notice, the Company will give notice of such requested registration
to all other holders of Registrable Securities. The Company will then use
its reasonable best efforts to effect the registration under the
Securities Act of the Registrable Securities which the Company has been
requested to register by such Initiating Holders, and, subject to all of
the provisions of this Section 7, all other Registrable Securities which
the Company has been requested to register pursuant to Section 7.1.1 by
notice delivered to the Company within 20 days after the giving of such
notice by the Company (which request shall specify the intended method of
disposition of such Registrable Securities), all to the extent requisite
to permit the disposition (in accordance with the intended methods
thereof as aforesaid) of the Registrable Securities which the Company has
been so requested to register. The demand registration rights granted
pursuant to this Section 7.2.1 may not be exercised on more than two
occasions. No holder of Xxx Securities shall present any request for
registration pursuant to this Section 7.2.1 at any time within one
hundred twenty (120) days after either the furnishing by the Company of
any notice of proposed registration under Section 7.1 or 7.2 hereof
(unless abandoned by notice from the Company or the Majority Initiating
Holders, as applicable) or the consummation of any other Public Offering,
without the prior consent of the Company.
7.2.2. REGISTRATION ON REQUEST OF HOLDERS OF SCP SECURITIES AND
EMPLOYEE SECURITIES.
7.2.2.1. SCP INVESTORS. At any time following consummation
of the Initial Public Offering, the SCP Majority Holders (as to
such registration, the "INITIATING HOLDERS") may, by notice to the
Company specifying the intended method or methods of disposition,
request that the Company effect the registration under the
Securities Act of all or a specified part of the Registrable
Securities held by such
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holders. The demand registration rights granted pursuant to
this Section 7.2.2.1 may not be exercised on more than one (1)
occasion.
7.2.2.2. OTHER INVESTORS. At any time following the
consummation of any two Public Offerings, the Employee
Majority Holders (as to such registration, the "INITIATING
HOLDERS") may, by notice to the Company specifying the
intended method or methods of disposition, request that the
Company effect the registration under the Securities Act of
all or a specified part of the Registrable Securities held by
such holders. The demand registration rights granted pursuant
to this Section 7.2.2.2 may not be exercised on more than two
(2) occasions.
7.2.2.3. CERTAIN PROVISIONS. No holder of SCP
Securities or Employee Securities shall present any request
for registration pursuant to this Section 7.2.2 at any time
within one hundred twenty (120) days after either the
furnishing by the Company of any notice of proposed
registration under Section 7.1 or 7.2 hereof (unless abandoned
by notice from the Company or the Majority Initiating Holders,
as applicable) or the consummation of any other Public
Offering without the prior consent of the Company. Promptly
after receipt of any notice requesting registration of
Registrable Securities pursuant to this Section 7.2.2, the
Company will give notice of such requested registration to all
other holders of Registrable Securities. The Company will then
use its reasonable best efforts to effect the registration
under the Securities Act of the Registrable Securities which
the Company has been requested to register by the holders
requesting pursuant to this Section 7.2.2, and, subject to all
of the provisions of this Section 7, all other Registrable
Securities which the Company has been requested to register
pursuant to Section 7.1.1 by notice delivered to the Company
within 20 days after the giving of such notice by the Company
(which request shall specify the intended method of
disposition of such Registrable Securities), all to the extent
requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable
Securities which the Company has been so requested to
register.
7.2.3. FORM. Each registration requested pursuant to Section
7.2.1 shall be effected by the filing of a registration statement on
Form S-1 (or any other form which includes substantially the same
information as would be required to be included in a registration
statement on such form as currently constituted), unless the use of a
different form has been agreed to in writing by holders of at least a
majority of the Registrable Securities held by the Initiating Holders
(the "Majority Initiating Holders"). Each registration requested
pursuant to Section 7.2.2 shall be effected by the filing of a
registration statement on Form S-3; PROVIDED, HOWEVER, that if at such
time Form S-3 is
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not available to the Initiating Holders, then such registration may be
effected by the filing of a registration statement on Form S-1 or such
other form as may be agreed to in writing by the Majority Initiating
Holders. At the time of the Initial Public Offering and thereafter, the
Company shall use commercially reasonable efforts to make the Company
eligible to register Registrable Securities on Form S-3, including the
listing of its securities on a national securities exchange or the
quoting of its securities on an automated quotation system of a national
securities association.
7.2.4. REGISTRATIONS PURSUANT TO SECTION 7.2. In the case of a
registration pursuant to Section 7.2, whenever the Majority Initiating
Holders shall request that such registration shall be effected pursuant
to an underwritten offering, such registration shall be so effected, and
all Registrable Securities to be included in such registration shall be
included in such underwritten offering, subject to the cutback provisions
of Section 7.3.1. If requested by such underwriters, the Company will
enter into an underwriting agreement with such underwriters for such
offering containing such representations and warranties by the Company
and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions,
including, without limitation, customary indemnity and contribution
provisions.
7.2.5. EXPENSES. The Company shall pay all expenses of the holders
of Registrable Securities participating in any Public Offering pursuant
to this Section 7.2, other than (i) underwriting discounts and
commissions, if any, (ii) applicable transfer taxes, if any, and (iii)
fees and charges of any attorneys or other advisors (other than attorneys
and advisors retained by the Company to advise it in connection with such
Public Offering and one counsel retained to advise all holders of
Registrable Securities in connection with such Public Offering) retained
by any such holders.
7.3. CERTAIN OTHER PROVISIONS.
7.3.1. CUTBACKS. Notwithstanding the foregoing provisions of this
Section 7, if the Company is advised in good faith by any managing
underwriter of securities being offered pursuant to any Public Offering
under this Section 7 that the number of shares requested to be sold in
such Public Offering is greater than the number of such shares which can
be included in such Public Offering without materially adversely
affecting such Public Offering, the shares to be included in such
offering shall be reduced to the extent requested by such managing
underwriter as provided in this Section 7.3.1:
7.3.1.1. COMPANY REGISTRATION OR IPO. Upon registration by
the Company of securities for its own account as contemplated by
Section 7.1.1 or in
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the case of an Initial Public Offering, shares to be included in
such offering shall be reduced in the following order and fashion:
(i) first, Registrable Securities requested to be
included in the Public Offering by Persons other than the Company,
if any, with respect to such Public Offering shall be reduced pro
rata (based on the number of shares requested to be included by
such Persons); and
(ii) second, shares of Common Stock proposed to be
included by the Company shall be reduced.
7.3.1.2. DEMAND REGISTRATION RIGHTS. Upon the exercise of
demand registration rights by the Initiating Holders pursuant to
Section 7.2 (except in the case of an Initial Public Offering),
the shares to be included in such offering shall be reduced pro
rata (based on the number of such shares proposed to be included).
7.3.2. SELECTION OF MANAGING UNDERWRITERS. In the case of any
registration proposed by the Company for the Public Offering of
securities for its own account, the managing underwriters, if any, with
respect thereto shall be selected by the Board of Directors. In the case
of any registration pursuant to Section 7.2 hereof, the holders of a
majority of the Registrable Securities requested to be included therein
hereunder shall select the managing underwriters, if any, with respect
thereto. Notwithstanding the foregoing provisions of this Section 7.3.2,
in the case of the Initial Public Offering, the managing underwriter with
respect thereto shall be selected by the Xxx Majority Holders, provided
that the Xxx Investors hereby acknowledge and agree that prior to
selecting any managing underwriter pursuant to this Section 7.3.2, they
will cause the Xxx Designated Investors to notify and discuss such action
with the other members of the Board, it being acknowledged and agreed
that the consent of the SCP Designated Director and the Employee
Designated Directors shall not be required in connection with any such
selection, nor shall any action be invalidated based on the failure of
such Xxx Designated Directors to notify and discuss such actions with the
other Directors.
7.3.3. Selection of Counsel. Counsel to the Company in connection
with any Public Offering shall be selected by the Board of Directors, and
counsel to the selling holders of Registrable Securities shall be
selected by the holders of a majority of the Registrable Securities
requested pursuant to the provisions hereof to be included therein.
7.4. INDEMNIFICATION AND CONTRIBUTION.
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7.4.1. INDEMNITIES OF THE COMPANY. In the event of any
registration of any Registrable Securities or other debt or equity
securities under the Securities Act, and in connection with any
registration statement filed under the Securities Act, or any other
disclosure document produced by or on behalf of the Company and any of
its Subsidiaries, including without limitation reports required or other
documents filed under the Exchange Act and documents pursuant to which
securities of the Company and any of its Subsidiaries are sold (whether
or not for the account of the Company), the Company will, and hereby
does, and will cause each of its Subsidiaries, jointly and severally to,
indemnify and hold harmless each seller of Registrable Securities, any
other holder of Securities who is or might be deemed to be a controlling
Person of the Company and any of its Subsidiaries within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, their
respective direct and indirect partners, advisory board members,
directors, officers and shareholders, and each other Person, if any, who
controls any such seller or any such holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (each such
person being referred to herein as a "Covered Person"), against any
losses, claims, damages or liabilities, joint or several, to which such
Covered Person may be or become subject under the Securities Act, the
Exchange Act, state securities or blue sky laws, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in any registration statement
under the Securities Act, any preliminary prospectus or final prospectus
included therein, or any related summary prospectus, or any amendment or
supplement thereto, or any document incorporated by reference therein, or
any other disclosure document (including without limitation reports and
other documents filed under the Exchange Act) or any document
incorporated by reference therein, (ii) any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any
violation by the Company and any of its Subsidiaries of any federal,
state or common law rule or regulation applicable to the Company or to
any of its Subsidiaries and relating to action or inaction in connection
with any such registration or disclosure document and will reimburse such
Covered Person for any legal or any other expenses incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; PROVIDED, HOWEVER, that neither the
Company nor any of its Subsidiaries shall be liable to any Covered Person
in any such case to the extent that any such loss, claim, damage,
liability, action or proceeding arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement or other
disclosure document in reliance upon and
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in conformity with written information furnished to the Company or to any
of its Subsidiaries through an instrument duly executed by such Covered
Person specifically stating that it is for use in the preparation
thereof. The indemnities of the Company and each of its Subsidiaries
contained in this Section 7.4.1 shall remain in full force and effect
regardless of any investigation made by or on behalf of such Covered
Person and shall survive any transfer of securities.
7.4.2. INDEMNITIES TO THE COMPANY. The Company and any of its
Subsidiaries may require, as a condition to including any securities in
any registration statement filed pursuant to this Section 7, that the
Company and any of its Subsidiaries shall have received an undertaking
satisfactory to it from the prospective seller of such securities, to
indemnify and hold harmless the Company and any of its Subsidiaries, each
director of the Company or any of its Subsidiaries, each officer of the
Company or any of its Subsidiaries who shall sign such registration
statement and each other Person (other than such seller), if any, who
controls the Company and any of its Subsidiaries within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, with
respect to any statement in or omission from such registration statement
(or any violation by the Company of any federal, state or common law rule
or regulation applicable to the Company), any preliminary prospectus or
final prospectus included therein, or any amendment or supplement
thereto, or any other disclosure document (including without limitation
reports and other documents filed under the Exchange Act) if such
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company or to any of its
Subsidiaries through an instrument executed by such seller specifically
stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement or other disclosure document. Such indemnity
shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company, any of its Subsidiaries, or any such
director, officer or controlling Person and shall survive any transfer of
securities.
7.4.3. CONTRIBUTION. If the indemnification provided for in
Sections 7.4.1 or 7.4.2 hereof is unavailable to a party that would have
been an indemnified party under any such Section in respect of any
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to therein, then each party that would have
been an indemnifying party thereunder shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of such
indemnifying party on the one hand and such indemnified party on the
other in connection with the statements or
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omissions which resulted in such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof). The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or such indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties agree that it would not
be just or equitable if contribution pursuant to this Section 7.4.3 were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the preceding sentence. The amount paid or payable by a contributing
party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to above in this
Section 7.4.3 shall include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 1l(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
7.4.4. LIMITATION ON LIABILITY OF HOLDERS OF REGISTRABLE
SECURITIES. The liability of each holder of Registrable Securities in
respect of any indemnification or contribution obligation of such holder
arising under this Section 7.4 shall not in any event exceed an amount
equal to the net proceeds to such holder (after deduction of all
underwriters' discounts and commissions and all other expenses paid by
such holder in connection with the registration in question) from the
disposition of the Registrable Securities disposed of by such holder
pursuant to such registration.
7.5. LOCK UP. No holder of Securities shall Transfer any Securities
without the prior written consent of the underwriters managing the offering (i)
for a period beginning seven days immediately preceding and ending on the 180th
day following the effectiveness of the registration statement filed in
connection with the Initial Public Offering, and (ii) for a period beginning
seven days immediately preceding and ending on the 180th day following the
effectiveness of the registration statement filed in connection with any
subsequent Public Offering, or such lesser period as may be consented to in
writing by the underwriters managing such subsequent Public Offering.
8. CERTAIN FUTURE EQUITY FINANCINGS OF THE COMPANY. The Company shall not
issue or sell any shares of any of its capital stock or any securities
convertible into or exchangeable for any shares of its capital stock, issue or
grant any rights (either preemptive or other) to subscribe for or to purchase,
or any options or warrants for the purchase of, or enter into any agreements
providing for the issuance (contingent or otherwise) of, any of its capital
stock
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or any stock or securities convertible into or exchangeable for any shares of
its capital stock, or grant stock appreciation or other equity equivalent
rights, in each case to any Person (each an "ISSUANCE" of "SUBJECT SECURITIES"),
except in compliance with the following provisions of this Section 8; PROVIDED,
HOWEVER, that the provisions of this Section 8 shall not apply to any such
issuance or sale pursuant to options, warrants or rights for, or securities
convertible into, other securities, in each case if such options, warrants,
rights or convertible securities (i) were outstanding as of the date hereof, or
(ii) were issued after the date hereof in connection with employee compensation
or incentive plans established from time to time by the Company; and PROVIDED,
FURTHER, that the provisions of this Section 8 shall not apply to any such
issuance or sale of (i) shares of capital stock in connection with acquisitions
by the Company or any of its Subsidiaries which are approved by the Board or
(ii) warrants, debt instruments or other securities convertible into or
exchangeable for shares of capital stock which are issued to any bank or
financial institution in connection with any future debt financing of the
Company or any of its Subsidiaries unless and until such time as such securities
are actually converted into or exchanged for shares of capital stock.
8.1. RIGHT OF PARTICIPATION.
8.1.1. OFFER. Not fewer than thirty (30) business days prior to
the consummation of the Issuance, a notice (the "PREEMPTION NOTICE")
shall be furnished by the Company to each holder of Xxx Securities, SCP
Securities, Seller Securities and the Compensation Committee of the Board
on behalf of the holders of Employee Securities (collectively, the
"PREEMPTIVE PURCHASER OFFEREES"). The Preemption Notice shall include:
(i) The principal terms of the proposed Issuance,
including without limitation the amount and kind of Subject
Securities to be included in the Issuance, the percentage of the
total number of shares of Common Stock outstanding as of
immediately prior to giving effect to such Issuance (calculated on
a fully diluted basis) which the number of Securities (giving
effect to all Options, as if such Options had been exercised to
purchase the number of shares of Common for which such Options
were then exercisable, on a cashless basis) held by such
Preemptive Purchaser Offeree (in the case of the Compensation
Committee, as to all Employee Securities) constitutes (the
"PREEMPTIVE PORTION"), the maximum price per unit of the Subject
Securities, the name and address of the Persons to whom the
Subject Securities will be Issued (the "PROPOSED BUYERS") and the
other principal terms of the proposed Issuance; and
(ii) An offer by the Company to Issue, at the option of
each Preemptive Purchaser Offeree, to such Preemptive Purchaser
Offeree, such portion of the
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Subject Securities to be included in the Issuance as may be
requested by such Preemptive Purchaser Offeree (not to exceed the
Preemptive Portion of the total amount of Subject Securities to be
included in the Issuance) determined as provided in Section 8.1.2,
on the same terms and conditions, with respect to each unit of
Subject Securities issued to the Preemptive Purchaser Offerees, as
each of the Proposed Buyers shall be Issued each of his, her or
its units of Subject Securities.
8.1.2. TIME AND MANNER OF EXERCISE BY OFFEREES. Each Preemptive
Purchaser Offeree desiring to accept the offer contained in the
Preemption Notice shall send a written commitment to the Company
specifying the amount of Subject Securities (not in any event to exceed
the Preemptive Portion of the total amount of Subject Securities to be
included in the Issuance) which such Preemptive Purchaser Offeree desires
to be issued within ten (10) business days after effectiveness of the
Preemption Notice (each Preemptive Purchaser Offeree who so accepts the
offer contained in the Preemption Notice being referred to herein as a
"PARTICIPATING BUYER"). Each Preemptive Purchaser Offeree who has not so
accepted such offer shall be deemed to have waived all of his rights with
respect to the Issuance, and the Company shall thereafter be free to
Issue in the Issuance to the Proposed Buyers, at a price no less than
95% of the maximum price set forth in the Preemption Notice and on
otherwise substantially no more favorable terms than as set forth in the
Preemption Notice, without any further obligation to include such
non-accepting Preemptive Purchaser Offerees in the Issuance. If, prior to
consummation, the terms of such proposed Issuance shall change with the
result that the price shall be less than 95% of the maximum price set
forth in the Preemption Notice or the other principal terms shall be
substantially more favorable than as set forth in the Preemption Notice,
it shall be necessary for a separate Preemption Notice to have been
furnished, and the terms and provisions of this Section 8.1 separately
complied with, in order to consummate such proposed Issuance pursuant to
this Section 8.1.
The acceptance of each Participating Buyer shall be irrevocable
except as hereinafter provided, and each such Participating Buyer shall
be bound and obligated to acquire in the Issuance on the same terms and
conditions (subject to all of the provisions of this Agreement), with
respect to each unit of Subject Securities Issued, as the Proposed Buyers
shall be Issued each of his, her or its units of Subject Securities, such
amount of Subject Securities as such Participating Buyer shall have
specified in such Participating Buyer's written commitment. If at the end
of the one hundred twentieth (120th) day following the date on which the
Preemption Notice was given the Company has not completed the Issuance as
provided in the foregoing provisions of this Section 8, each
Participating Buyer shall be released from his obligations under the
written commitment, the Preemption Notice shall be null and void, and it
shall be necessary for a separate
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Preemption Notice to have been furnished, and the terms and provisions of
this Section 8.1 separately complied with, in order to consummate an
Issuance pursuant to this Section 8.1, unless the failure to complete the
Issuance resulted from any failure by any Preemptive Purchaser Offeree to
comply in any material respect with the terms of this Section 8.
8.1.3. EXERCISE BY THE COMPENSATION COMMITTEE. Notwithstanding the
generality of the provisions of Section 8.1.2, the Compensation Committee
of the Board shall have the right to accept the offer contained in the
Preemption Notice as to the Preemptive Portion of Subject Securities on
behalf of any employee of the Company or any of its Subsidiaries as the
Compensation Committee may so designate. If the Compensation Committee
desires to accept the offer contained in the Preemption Notice, it shall
send a written notice of acceptance to the Company within ten (10)
business days after effectiveness of the Preemption Notice. The
Compensation Committee shall within ninety (90) days after effectiveness
of the Preemption Notice send to the Company a written notice which
specifies the name of each employee to whom the Compensation Committee
has delegated the right to purchase Subject Securities and the number of
shares of Subject Securities allocated to such employee (not to exceed as
to all such employees the Preemptive Portion of the total amount of
Subject Securities to be included in the Issuance).
8.1.4. CERTAIN LEGAL REQUIREMENTS. In the event the participation
by any Preemptive Purchaser Offeree as a Participating Buyer would
require under applicable law (i) the registration or qualification of any
securities or of any person as a broker or dealer or agent with respect
to such securities or (ii) the provision to any participant in the
Issuance of any information other than such information as would
be required under Regulation D of the Securities and Exchange Commission
or similar rule then in effect in an offering made pursuant to said
Regulation D solely to "accredited investors" as defined in said
Regulation D, the Company shall be obligated to use all commercially
reasonable efforts to cause such requirements to have been complied with
to the extent necessary to permit such Participating Buyer to receive
such securities. Notwithstanding any provisions of this Section 8, if use
of all commercially reasonable efforts shall not have resulted in such
requirements being complied with to the extent necessary to permit such
Participating Buyer to receive such securities, the Company may exclude
such Participating Buyer from participation in the Issuance. The
obligation of the Company to use reasonable best efforts to cause such
requirements to have been complied with to the extent necessary to permit
a Participating Buyer to receive such securities shall be conditioned on
such Participating Buyer executing such documents and instruments, and
taking such other actions (including without limitation, if required by
the Company on advice of its counsel, agreeing to be
-34-
39
represented during the course of such transaction by a "purchaser
representative" (as defined in Regulation D) in connection with
evaluating the merits and risks of the prospective investment and
acknowledging that he was so represented), as the Company shall
reasonably request in order to permit such requirements to have been
complied with. Each Participating Buyer agrees to take such actions as
the Company shall reasonably request in order to permit such requirements
to have been complied with.
8.1.5. CLOSING. Each Participating Buyer shall take such actions
and execute such documents and instruments as shall be reasonably
necessary or desirable in order to consummate the Issuance expeditiously
and on the same terms and conditions (subject to all of the provisions of
this Agreement) with respect to each unit of Subject Securities Issued,
as the Proposed Buyers shall be Issued each of his, her or its units of
Subject Securities.
8.2. PERIOD. The foregoing provisions of this Section 8 shall terminate
simultaneously with the closing of the Initial Public Offering.
9. INFORMATION AND INSPECTION RIGHTS.
9.1. FINANCIAL STATEMENTS; INFORMATION. The Company will, and will
cause each of its Subsidiaries to, maintain a standard system of accounts in
accordance with generally accepted accounting principles consistently applied
and the Company will, and will cause each of its Subsidiaries to, keep full and
complete financial records. The Company will furnish to the Seller Initial
Investor and each other Investor which holds Securities which constitute at
least 4% of the Common Stock then outstanding the information set forth in this
Section 9.1.
(a) Within ninety (90) days after the end of each fiscal year,
a copy of the consolidated and consolidating balance sheet of the Company
and its Subsidiaries, if any, as at the end of such year, together with
consolidated and consolidating statements of income, shareholders' equity
and cash flows of the Company and its Subsidiaries, if any, for such
year, setting forth in each case in comparative form the corresponding
figures for the preceding fiscal year, all in reasonable detail and duly
certified by an independent public accountant of national recognition
selected by the Board of Directors of the Company.
(b) Within forty-five (45) days after the end of each fiscal
quarter, a consolidated and consolidating balance sheet of the Company
and its Subsidiaries, if any, as of the end of such fiscal quarter and
consolidated and consolidating statements of income, shareholders' equity
and cash flow for such fiscal quarter and for the period
-35-
40
commencing at the end of the previous fiscal year and ending with the end
of such month, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the preceding
fiscal year, all in reasonable detail.
(c) Promptly upon receipt thereof, any written report, so
called "management letter", and any other communication submitted to the
Company or any Subsidiary by its independent public accountants relating
to the business, prospects or financial condition of the Company and its
Subsidiaries, if any.
(d) Such other information with regard to the business,
properties or the condition or operations, financial or otherwise, of the
Company of its Subsidiaries, if any, as such Investor may from time to
time reasonably request; PROVIDED, THAT, nothing contained herein shall
entitle the Seller Investors to receive information (other than the
foregoing) which is generally made available exclusively to the Board of
Directors of the Company.
9.2. AVAILABILITY OF FINANCIAL AND OTHER INFORMATION. The Company will
make available at the request of any holder of Securities upon reasonable
advance notice, the information described in Sections 9.1(a) and (b) above.
9.3. INSPECTION. The Company shall permit authorized representatives of
the Seller Initial Investor and each Investor which holds Securities which
constitute at least 4% of the Common Stock then outstanding to visit and
inspect and copy any of the properties of the Company, including its books of
account and other records, and to consult its officers, administrative employees
and independent accountants regarding its affairs, finances and accounts during
normal business hours and upon reasonable advance notice, as may be reasonably
requested by such Investor, but in no event on more than four occasions in any
calendar year; PROVIDED, HOWEVER, that all such information provided to such
Investor by the Company will be maintained as confidential by such Investor and
not be disclosed to third parties; PROVIDED, FURTHER, that any such Investor may
provide summaries of such information to Affiliates of such Investor (such as
reports provided by such Investor to its Affiliates in its fiduciary capacity)
so long as such Affiliate is not a Competitor Institution.
10. AFFILIATED TRANSACTIONS. The Company shall not, and shall cause
its Subsidiaries not to, effect or remain obligated with respect to any
transaction with any Affiliate of the Company or any such Subsidiary other than
(i) transactions between the Company or any of its Subsidiaries on the one hand
and the Company or any of its Subsidiaries on the other hand, and (ii)
transactions on arms' length terms approved by the Board after full disclosure;
PROVIDED,
-36-
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HOWEVER, that the Company and its Subsidiaries may become and remain liable in
respect of compensation payable to executive officers and other employees of the
Company and its Subsidiaries in the ordinary course of business and transaction
and management fees payable to the Xxx Investors and the SCP Investors pursuant
to agreements executed in connection with the closing under the Contribution
Agreement.
11. REMEDIES.
11.1. GENERALLY. The Company and all holders of Securities shall have
all remedies available at law, in equity or otherwise in the event of any breach
or violation of this Agreement or any default hereunder by the Company or any
holder of Securities. The parties acknowledge and agree that in the event of any
breach of this Agreement, in addition to any other remedies which may be
available, each of the parties hereto shall be entitled to specific performance
of the obligations of the other parties hereto and, in addition, to such other
equitable remedies (including, without limitation, preliminary or temporary
relief) as may be appropriate in the circumstances.
11.2. DEPOSIT. Without limiting the generality of Section 11.1, if any
Investor (a "Non-Complying Investor") fails to deliver any certificate or
certificates evidencing Securities that may be required to be Transferred
pursuant to any provision of this Agreement in accordance with the terms hereof,
the Company or other Person entitled to purchase or require the Transfer of such
securities may, at its option, in addition to all other remedies it may have,
deposit the price for such Securities with any national bank or trust company
having combined capital, surplus and undivided profits in excess of one hundred
million dollars ($100,000,000) and which has agreed to act as escrow agent in
the manner contemplated by this Section 11.2 and shall furnish or make available
to all interested Persons satisfactory evidence of such deposit and thereupon
the Company shall cancel on its books the certificate or certificates
representing such Securities and, in the case of any such Transfer of Securities
to a Person other than the Company issue, in lieu thereof and in the name of
such Person, a new certificate or certificates representing such Securities and
thereupon all of the Non-Complying Investor's rights in and to such Securities
shall terminate. Thereafter, upon delivery to the Company by such Non-Complying
Investor of the certificate or certificates evidencing such Securities (duly
endorsed, or with stock powers or other appropriate instruments of transfer duly
endorsed, for transfer, with signature guaranteed, free and clear of any liens
or encumbrances, and with all applicable stock transfer tax stamps affixed), the
Company shall instruct the escrow agent referred to above to deliver the
purchase price (without any interest from the date of the closing to the date of
such delivery, any such interest to accrue to the Person who deposited the
purchase price for such Securities) to such Non-Complying Investor.
-37-
42
12. LEGEND. Each certificate representing Securities shall have the
following legend endorsed conspicuously thereupon:
"The securities represented by this certificate are subject to
restrictions on voting and transfer and requirements of sale and the
provisions as set forth in the Stockholders Agreement dated as of
November 30, 1996, as amended and in effect from time to time, and
constitute Securities as defined in such Stockholders Agreement. The
Company will furnish a copy of such agreement to the holder of this
certificate without charge upon written request."
Any person who acquires Securities which are not subject to all or part
of the terms of this Agreement shall have the right to have such legend (or the
applicable portion thereof) removed from certificates representing such
Securities.
13. AMENDMENT, ETC.
13.1. NO ORAL MODIFICATIONS. This Agreement may not be orally amended,
modified, extended or terminated, nor shall any oral waiver of any of its terms
be effective.
13.2. WRITTEN MODIFICATIONS. This Agreement may be amended, modified,
extended or terminated, and the provisions hereof may be waived, by an agreement
in writing signed by the holders of not less than fifty-five percent (55%) of
the outstanding shares of Common Stock; provided, however, that no amendment,
restatement, modification, termination or waiver which adversely affects the
rights of the holders of SCP Securities, the holders of Employee Securities or
the holders of Seller Securities shall be effective without the written consent
(which, in the case of the holders of Employee Securities, such consent shall
not require as a condition precedent the solicitation of all holders of Employee
Securities) of those holders holding a majority of such type of Securities,
regardless of whether such proposed amendment or other modification equally
affects the holders of each other type of Securities. In addition, each party
hereto and each holder of Securities subject hereto may waive any of its rights
hereunder by an instrument in writing signed by such party or holder.
14. MISCELLANEOUS.
14.1. AUTHORITY; EFFECT. Each party hereto represents and warrants to
and agrees with each other party that the execution and delivery of this
Agreement has been duly authorized on behalf of such party and does not violate
any agreement or other instrument applicable to such party or by which its
assets are bound. This Agreement does not, and shall not be construed to,
-38-
43
give rise to the creation of a partnership among any of the parties hereto, or
to constitute any of such parties members of a joint venture or other
association.
14.2. NOTICES. Notices and other communications provided for in this
Agreement shall be in writing and shall be effective (i) when one day shall have
elapsed (exclusive of Saturdays, Sundays and banking holidays in the City of
Boston) from their deposit for overnight delivery with Federal Express or other
bonded courier (charges prepaid), addressed to the party or parties sought to
be charged with notice of the same at the respective addresses set forth or
referred to below, subject to written notice of change of address given by any
party to each other party, (ii) when three (3) days shall have elapsed
(exclusive of Saturdays, Sundays and banking holidays in the City of Boston)
from their deposit in the U.S. mail, postage prepaid and registered or
certified, addressed to the party or parties sought to be charged with notice of
the same at the respective addresses set forth or referred to below, subject to
written notice of change of address given by any party to each other party, or
(iii) if earlier, upon receipt.
If to the Company, to it at:
JHFSC Acquisition Corp.
c/o Xxxxxx Xxxxxxx Incorporated
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chairman
with copies to:
Xxxx Xxxxxxx Freedom Securities Corporation
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. XxXxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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44
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
If to the Xxx Initial Investor, to it at:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
If to the SCP Initial Investor, to it at:
SCP Private Equity Partners
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to:
SCP Private Equity Partners
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx
If to the Seller Initial Investor, to it at:
-40-
45
c/o Xxxx Xxxxxxx Mutual Life
Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Vice Chairman
and Chief Investment Officer
with a copy to:
Xxxx Xxxxxxx Mutual Life
Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxx and Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxx X. Xxxx, Esq.
If to any Employee Investor, to him or her at:
c/o Xxxx X. Xxxxxxxxx, Employee Securities Representative
Xxxxxx Xxxxxxx Incorporated
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
with copies to:
Xxxx Xxxxxxx Freedom Securities Corporation
One World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. XxXxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
-41-
46
If to any other Investor, to such Investor at the address set
forth in the stock record book of the Company.
Notice to the holder of record of any shares of capital stock shall be
deemed to be notice to the holder of such shares for all purposes hereof.
14.3. BINDING EFFECT, ETC. This Agreement constitutes the entire
agreement of the parties with respect to its subject matter, supersedes all
prior or contemporaneous oral or written agreements or discussions with respect
to such subject matter, and shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, representatives, successors and
assigns. No provision of this Agreement providing for the expiration of any
provision by lapse of time or upon the occurrence of specified events or
otherwise shall relieve any Person of liability for breach or violation prior to
such expiration.
14.4. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are for convenience of reference only, are not to be considered a part hereof
and shall not be construed to define or limit any of the terms or provisions
hereof.
14.5. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
14.6. SEVERABILITY. If in any judicial or arbitral proceedings a court
or arbitrator shall refuse to enforce any provision of this Agreement, then such
unenforceable provision shall be deemed eliminated from this Agreement for the
purpose of such proceedings to the extent necessary to permit the remaining
provisions to be enforced. To the full extent, however, that the provisions of
any applicable law may be waived, they are hereby waived to the end that this
Agreement be deemed to be valid and binding agreement enforceable in accordance
with its terms, and in the event that any provision hereof shall be found to be
invalid or unenforceable, such provision shall be construed by limiting it so as
to be valid and enforceable to the maximum extent consistent with and possible
under applicable law.
-42-
47
15. GOVERNING LAW, ARBITRATION.
15.1. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the domestic substantive laws of The Commonwealth of
Massachusetts without giving effect to any choice or conflict of laws provision
or rule that would cause the application of the domestic substantive laws of any
other jurisdiction; PROVIDED, HOWEVER, that any dispute relating to the
provisions of Section 15.2 hereof shall be governed by the United States
Arbitration Act as then in force.
15.2. ARBITRATION.
15.2.1. GENERALLY. Except solely as set forth in Section 15.2.3
hereof, each dispute, difference, controversy or claim arising in
connection with or related or incidental to, or question occurring under,
this Agreement or the subject matter hereof shall be finally settled
under the Commercial Arbitration Rules of the American Arbitration
Association (the "AAA") by an arbitral tribunal composed of three
arbitrators, at least one of whom shall be an attorney experienced in
corporate transactions, appointed by agreement of the parties in
accordance with said Rules. In the event the parties fail to agree upon a
panel of arbitrators from the first list of potential arbitrators
proposed by the AAA; the AAA will submit a second list in accordance with
said Rules. In the event the parties shall have failed to agree upon a
full panel of arbitrators from said second list, any remaining
arbitrators to be selected shall be appointed by the AAA in accordance
with said Rules. If, at the time of the arbitration, the parties agree in
writing to submit the dispute to a single arbitrator, said single
arbitrator shall be appointed by agreement of the parties in accordance
with the foregoing procedure, or, failing such agreement, by the AAA in
accordance with said Rules. The foregoing arbitration proceedings may be
commenced by any party by notice to the other parties.
15.2.2. PLACE OF ARBITRATION. The place of arbitration shall be
Boston, Massachusetts.
15.2.3. RECOURSE TO COURTS. The parties hereby exclude any right
of appeal to any court on the merits of the dispute. The provisions of
this Section 15.2 may be enforced in any court having jurisdiction over
the award of any of the parties or any of their respective assets, and
judgment on the award (including without limitation equitable remedies)
granted in any arbitration hereunder may be entered in any such court.
Nothing contained in this Section 15.2 shall prevent any party from
seeking interim measures of
-43-
48
protection in the form of pre-award attachment of assets or preliminary
or temporary equitable relief.
15.3. CONSENT TO JURISDICTION. Subject to the provisions of Section
15.2, each of the parties agrees that all actions, suits or proceedings arising
out of or based upon this Agreement or the subject matter hereof shall be
brought and maintained exclusively in the federal and state courts of The
Commonwealth of Massachusetts. Subject to the provisions of Section 15.2, each
of the parties hereto by execution hereof (i) hereby irrevocably submits to the
jurisdiction of the federal and state courts in The Commonwealth of
Massachusetts for the purpose of any action, suit or proceeding arising out of
or based upon this Agreement or the subject matter hereof and (ii) hereby waives
to the extent not prohibited by applicable law, and agrees not to assert, by way
of motion, as a defense or otherwise, in any such action, suit or proceeding,
any claim that he or it is not subject personally to the jurisdiction of the
above-named courts, that he or it is immune from extraterritorial injunctive
relief or other injunctive relief, that his or its property is exempt or immune
from attachment or execution, that any such action, suit or proceeding may not
be brought or maintained in one of the above-named courts, that any such action,
suit or proceeding brought or maintained in one of the above-named courts should
be dismissed on grounds of FORUM NON CONVENIENS, should be transferred to any
court other than one of the above-named courts, should be stayed by virtue of
the pendency of any other action, suit or proceeding in any court other than one
of the above-named courts, or that this Agreement or the subject matter hereof
may not be enforced in or by any of the above-named courts. Each of the parties
hereto hereby consents to service of process in any such suit, action or
proceeding in any manner permitted by the laws of The Commonwealth of
Massachusetts, agrees that service of process by registered or certified mail,
return receipt requested, at the address specified in or pursuant to Section
14.2 is reasonably calculated to give actual notice and waives and agrees not to
assert by way of motion, as a defense or otherwise, in any such action, suit or
proceeding any claim that service of process made in accordance with Section
14.2 does not constitute good and sufficient service of process. The provisions
of this Section 15.3 shall not restrict the ability of any party to enforce in
any court any judgment obtained in a federal or state court of The Commonwealth
of Massachusetts.
15.4. WAIVER OF JURY TRIAL. To the extent not prohibited by applicable
law which cannot be waived, each of the parties hereto hereby waives, and
covenants that he or it will not assert (whether as plaintiff, defendant, or
otherwise), any right to trial by jury in any forum in respect of any issue,
claim, demand, cause of action, action, suit or proceeding arising out of or
based upon this Agreement or the subject matter hereof, in each case whether now
existing or hereafter arising and whether in contract or tort or otherwise. Any
of the parties hereto may file an original counterpart or a copy of this Section
15.4 with any court as written evidence of the consent of each of the parties
hereto to the waiver of his or its right to trial by jury.
-44-
49
15.5. RELIANCE. Each of the parties hereto acknowledges that he or it
has been informed by each other party that the provisions of Section 15
constitute a material inducement upon which such party is relying and will rely
in entering into this Agreement and the transactions contemplated hereby.
[THE REST OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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50
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE COMPANY: JHFCS ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Title: President
THE XXX INITIAL INVESTORS: XXXXXX X. XXX
EQUITY FUND
III, L.P.
By: THL Equity Advisors
Limited Partnership III,
General Partner
By: THL Equity Trust III,
General Partner
By: /s/ X. Xxxxxx Xxxx
------------------------------
Title: Vice President
XXXXXX X. XXX
FOREIGN FUND III, L.P.
By: THL Equity Advisors
Limited Partnership III,
General Partner
By: THL Equity Trust III,
General Partner
By: /s/ X. Xxxxxx Xxxx
------------------------------
Title: Vice President
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51
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
General Partner
By: /s/ X. Xxxxxx Xxxx
-----------------------------------
Title: Vice President
THE SCP INITIAL
INVESTOR: SCP PRIVATE EQUITY PARTNERS, L.P.
By: /s/ Xxxxxx X. Plum
-----------------------------------
Title: General Partner
THE SELLER INITIAL
INVESTOR: XXXX XXXXXXX SUBSIDIARIES, INC.
By:
-----------------------------------
Title:
THE EMPLOYEE INITIAL
INVESTORS: EACH OF THE INDIVIDUALS AND ENTITIES
LISTED ON SCHEDULE II HERETO*
By: /s/ Xxxxx XxXxx
-----------------------------------
* as attorney-in-fact for each
of the above-mentioned
Employee Investors
52
THL-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
General ParTNer
By:
-----------------------------------
Title:
THE SCP INITIAL
INVESTOR: SCP PRIVATE EQUITY PARTNERS, L.P.
By:
-----------------------------------
Title: General Partner
THE SELLER INITIAL
INVESTOR: XXXX XXXXXXX SUBSIDIARIES, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Title: Xxxx X. Xxxxxx
Treasurer
THE EMPLOYEE INITIAL
INVESTORS: EACH OF THE INDIVIDUALS AND ENTITIES
LISTED ON SCHEDULE II HERETO*
By:
-----------------------------------
* as attorney-in-fact for each
of the above-mentioned
Employee Investors
53
SCHEDULE I
----------
Stockholders and Holdings
-------------------------
Class of Number
Stockholder Stock Options of Shares
----------- ----- ------- ---------
Xxxxxx X. Xxx Equity Common Stock 3,425,778
Fund III, L.P.
Xxxxxx X. Xxx Foreign Common Stock 211,977
Fund III, L.P.
THL-CCI Limited Common Stock 355,365
Partnership
SCP Private Equity Common Stock 998,280
Partners, X.X.
Xxxx Xxxxxxx Subsidiaries, Common Stock 394,653.7
Inc.
Employee Investors in the Common Stock 2,508,600
aggregate
54
SCHEDULE II
-----------
Employee Investors
------------------
Class Number Number
Name of Stock of Shares of Options
---- -------- --------- ----------
See Attached
55
XXXXXX XXXXXXX/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX, XXXXXXX XXXXXXXX, XXXX XX - RESEARCH SU 5,000 330 670 1,000
XXXXXXXX, XXXXXX X. XXXXXXXX, XXX TA - OTC TRADING TA 10,000 495 1,005 1,500
XXXXXX, XXXXXXXXX XXXX XXXXXX, XXXXXXXXX NY FIFTH AVE TA 4,800 429 871 1,300
XXXXX, XXXXXXX X. XXXXX, XXXX TA - ACCOUNTING TA 2,500 124 251 375
XXXXXX, XXXXXX. XXXXXX, XXXXXX BURLINGTON TA 5,000 495 1,005 1,500
XXXXX, XXXXXXX X. XXXXX, XXXXXXX LAS VEGAS SU 5,000 330 670 1,000
XXXXXXX, XXXXXX X. XXXXXXX, XXXXXX SAN XXXX XX 3,500 231 469 700
SUTRO C/F ALEXANDER, XXXX X. XXXXXXXXX, XXXX XX - RETAIL SU 5,000 330 670 1,000 2,000
XXXXXXX, XXXX TA 0 0 1,000 1,000
XXXXX, XXXXXX TA 0 0 1,000 1,000
XXXXXXXXX, XXXXXX X. XXXXXXXXX, XXX SU - FIXED INC. SU 2,500 124 251 375
XXXXXXXX, XXXXX X. XXXXXXXX, XXXXX SYRACUSE TA 2,500 231 469 700
XXXXXXX, XXXXXX XXXXXXX, XXXXXX SAN FRANCISCO SU - 0 0 1,000 1,000
XXXXX, XXXXX SU 0 0 1,000 1,000
XXXXX, XXXXX XXXXX, XXXXX JHCC TA 2,500 124 251 375
TA C/F XXXXXXXX, XXXXXX X. XXXXXXXX, XXX TA - FIXED INC. TA 2,500 124 251 375
XXXXXXXX, XXXXXXX XXXXXXXX, XXXXXXX SU - FIXED INC. SU - 0 0 1,000 1,000
BAGGOT JR., XXXXXX X. XXXXXX, XXX TA - MANAGERS TA 2,500 124 251 1,000 1,375
XXXXXX, XXXXXXXX TA 0 0 1,000 1,000
XXXX, XXXXXXXX X. AND
XXXXXXXX X. HOOPI XXXX, XXXXXXXX BOSTON TA 3,650 363 737 1,100
TTEES, OF THE X.X. XXXX
TRUST DTD 4-30-87 XXXX, XXXXXXXX TA 0 0 -
BANDO, XXXXXXXXX X. XXXXX, XXXXX XX - PUB FINANCE SU 6,000 429 871 1,300
TA C/F XXXXX, XXXX X.X. XXXXX, XXXX SYRACUSE TA 3,350 380 771 1,150
XXXXX, XXXXXX X. XXXXX, XXXXXX XX - PUB FINANCE SU 2,500 124 251 375
BARNARD, XXXXXX XX 0 0 1,000 1,000
XXXXXX, XXXX X. XXXXXX, XXXX XXXXXXXX TA 2,500 251 509 760
XXXXXXXX, XXXXXX TREE,
XXXXXX XXXXXXXX TR BARNSTON, AL SAN FRANCISCO SU 3,000 619 1,256 1,875
XXXXX, XXXX XXXXX, XXXX SAN XXXX XX - 0 0 1,000 1,000
SUTRO C/F XXXXXX, XXXXXX X. XXXXXX, XXX XX - PUB FINANCE SU 3,500 173 352 525
XXXXXX, XXXXX XXXXXX, XXXX BOSTON TA 4,000 396 804 1,200
XXXXX, XXXX TA 0 0 1,000 1,000
XXXXXX, XXXXXXX X. XXXXXX, RICH BURLINGTON TA 5,000 495 1,005 1,500
BECKLEAN, XXXXXXX X. XXXXXXXX, XXXXXXX TA - RESEARCH TA 10,000 990 2,010 3,000
BEGGANS~ XXXX TA - 0 0 1,000 1,000
XXXX, XXXXX XXXX, XXXXX XXXXXXXX HILLS SU 4,800 373 757 1,130
BENHAYON, XXXXX XXXXXXXX, XXXXX XX - FIXED INC. SU 0 0 1,000 1,000
XXXXXXX, XXXXXXX X. XXXXXXX, XXXX TA - BANKING TA 20,000 1980 4,020 6,000
XXX-XXXXX, XXXXX XXX-XXXXX, XXX WOODLAND HILLS SU 2,500 429 871 1,300
XXXX, XXXXXX X.
XXXXX X. XXXX CO-TTEES BERL, XXXXXX XX - MISC./SYND SU 2,500 124 251 375
XXXXXX XXXX & XXXXX
XXXX LIV XX XXXX, XXXXXX XX 0 0 -
XXXXXX, XXXXXX X. XXXXXX, XXXXXX BOSTON TA 3,600 462 938 1,400
XXXXXXXXX, XXXX X. XXXXXXXXX, XXXX XXXXXXXX HILLS SU 2,500 140 285 425
XXXXXXXXX FAMILY TRUST XXXXXXXXX, XXXXXX SU 5,000 248 503 750
TA C/F BEST, XXXXXX XXXX, ART TA - MANAGERS TA 6,000 330 670 1,000 2,000
XXXXXX, XXXXX TA 0 0 1,000 1,000
TA C/F BISHOPRIC, XXXXX X. XXXXXXXXX, XXXXX TA - MANAGERS TA 2,500 124 251 1,000 1,375
XXXXXXXXX, XXXXX X. XXXXXXXXX, XXXXX XXXXXXXX TA 4,800 462 938 1,400
XXXXX, XXXXX XXXXX, XXXXX SU - MANAGERS SU 2,500 165 335 500
XXXXX, XXXXX SU 0 0 1,000 1,005
XXXXXXXX, XXXXXX XXXXXXXX, XXXXXX SAN XXXX XX - 0 0 1,000 1,000
XXXXXXXX, XXXXXXXX
AND XXXXXXX XXXXXXXX, XXXX XX. MGMT. TA 20,000 2475 5,025 7,500
Page 1
56
XXXXXX XXXXXXX/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
XXXX, XXXX X. XXXX, XXXX TA - BANKING TA 25,000 2475 5,025 7,500
XXXXXX, XXXXXXXX XXX XXXXX XXXXXX, XXXXXXXX BOSTON FR 2,500 124 251 375
XXXXXXXX, XXXXXXX X. XXXXXXXX, XXXX JHCC TA 2,500 124 251 375
XXXXX, XXXX X. XXXXX, XXXX PHILADELPHIA TA 3,000 248 503 750
XXXXXXX, XXXXX X. XXXXXXX, XXX XXXXXXXX TA 4,000 380 771 1,150
XXXXXXXXX, XXXXXXXX X. XXXXXXXXX, XXXXXXXX XXXXXXXX TA 3,950 396 804 1,200
XXXXXX, XXXXXX TA 0 0 1,000 1,000
XXXXX, XXXX TA 0 0 1,000 1,000
XXXXX, XXXX XXXXX, XXXX SANTA XXXX XX 5,000 330 670 1,000
XXXXX, XXXXXXX X. XXXXX, XXXX XX - BANKING SU 15,000 1073 2,178 3,250
XXXXX, XXXXXX XXXXX, XXXXXX TA - MANAGERS TA 2,500 116 235 1,000 1,350
XXXXXXX, XXXX XXXXXXX, XXXX SU - MANAGERS SU - 0 0 1,000 1,000
TA C/F XXXXXXXX, XXXXXX X. XXXXXXXX, XXXXXX TA - FIXED INC. TA 4,500 231 469 700
XXXXXXX, XXXXXXXXX XXXXXX
AND XXXX XXXXX XXXXXXX, XXXX XX - FIXED INC. SU 2,500 124 251 375
CO-TTEES XXXXXXX REVOCABLE
TRUST XXXXXXX, XXXX SU 0 0 -
XXXXX, XXXXXXX XXXXX, XXXX XX - BANKING SU 12,500 949 1,926 2,875
XXXXX, XXXXXX X. XXXXX, XXXXXX TA - FIXED INC. TA 3,500 165 335 500
XXXXX, XXXX TA 0 0 1,000 1,000
XXXX, XXXX FR 0 0 1,000 1,000
XXXXXX, XXXX TA 0 0 1,000 1,000
BUTTERWORTH, VIRGINIA TA 0 0 1,000 1,000
CADWGAN, XXXXXX XX 0 0 1,000 1,000
XXXXXXX, XXXXXXXX XXXXXXX, XXXXX TA- FIXED INC. TA 2,500 124 251 375
XXXXXXX, XXXXX TA 0 O 1,000 1,000
XXXXXXX, XXXXXX XXXXXXX, XXX TA- MANAGERS TA 5,000 248 503 1,000 1,750
XXXXXXXXX, XXX XXXXXXXXX, XXX CHICAGO TA - 0 0 2,000 2,000
TA C/F XXXXXXXXX JR., XXXX X. XXXXXXXXX, XXXX TA - RETAIL TA 3,350 254 516 770
XXXXXXXXX, XXXXXXXX TA 0 0 1,000 1,000
XXXXXX, XXXXXXXX X. XXXXXX, XXX XX - PUB FINANCE SU 5,000 338 687 1,025
XXXXXXX, XXXXX X. XXXXXXX, XXX TA - MANAGERS TA 2,500 124 251 1,000 1,375
XXXXX, XXXXXX XXXXX, XXXXXX OAKLAND SU - 0 0 1,000 1,000
XXXXXXX, XXXXXX X. XXXXXXX, XXXXXX XX. MGMT. TA 20,000 2475 5,025 7,500
XXXXXXX, XXXXXX X. XXXXXXX, XXXXXX XX - RESEARCH TA 20,000 1980 4,020 6,000
CASSlNELLI, XXXXXX X. XXXXXXXXXX, XXX XX. MGMT. TA 10,000 825 1,675 2,500
XXXXX, XXXX XXXXX, XXXX TA - FIXED INC. TA - 0 0 1,000 1,000
CERANKOWSKY JR., XXXXXXX CERANKOWSKY, CHARLES TA- RESEARCH TA 15,000 1485 3,015 4,500
XXXXXXXX, XXXX XXXXXXXX, XXXX FRESNO SU - 0 0 1,000 1,000
XXXX, XXXXXX X. XXXX, XXXXXX XX - BANKING SU 2,500 124 251 375
XXXXXXXXXX, XXXXXXX X. XXXXXXXXXX, XXXX XX - PUB FINANCE SU 7,500 536 1,089 1,625
CHEEK IV, XXXXXX XXXXX, LES TA - BANKING TA 7,000 693 1,407 2,100
TA C/F XXXXXX, XXXXXXX X. XXXXXX, XXXXXXX BOSTON TA 3,350 221 449 670
XXXXX, XXXXXX XXXXX, XXXXXX OAKLAND SU - 0 0 1,000 1,000
XXXXX, XXXX X XXXXX, XXXX XX - LEGAL SU 3,500 173 352 525
XXXXXXXX III. XXXX X. XXXXXXXX, XXXX NY FIFTH AVE TA 10,000 1320 2,680 4,000
XXXXX, XXXXXXX X. AND
XXXXXX XXXXXXXXXX XXXXX, XXXXXXX XX - PUB FINANCE SU 3,500 173 352 525
TTEES FBO XXXXXXX XXXXX &
XXXXXX XXXXXXXXXX XX XXXXX, XXXXXXX XX 0 0 -
XXXXXXX, XXXXX X. XXXXXXX, XXXXX PORTLAND, ME TA 5,350 432 878 1,310
XXXXXXXX, XXXXXX X. XXXXXXXX, XXX XX - XXXX SU 5,000 248 503 750
XXXXX, XXXXX X. XXXXX, XXXXX LAS VEGAS SU 3,350 221 449 670
XXXXX, XXXXX XXXXX, XXXXX XXXXXXXX XX 2,500 198 402 600
XXXXX, XXXXXX X. XXXXX, XXXXXX NY FIFTH AVE TA 3,950 333 677 1,010
Page 2
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XXXXXX XXXXXXX/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
XXXXXXX, XXXX X. XXXXXXX, XXXX XXXXXXX HILLS SU 3,350 376 764 1,140
COLBY, XXXXX XXXXX, XXXXXX LOS ANGELES SU 5,000 330 670 1,000
XXXXX,XXXXXX X. XXXXX, XXXXXX LOS ANGELES SU 5,000 330 670 1,000
XXXXXXX, XXXX X. XXXXXXX, XXXX X. LA JOLLA SU - 0 0 1,000 1,000
CONDE III, XXXXXXX X. XXXXX, XXXXX WATERTOWN TA 6,300 617 1,253 1,000 2,870
XXXXXXX, XXXX TA 0 0 1,000 1,000
XXXXXX, XXXXXX X. XXXXXX, XXXXXX XXXXXXXX TA 5,500 594 1,206 1,800
XXXXXXXXX, XXXX TA 0 0 1,000 1,000
XXXXXX, XXXXX XXXXXX XXXXXX, XXXXX TA - RETAIL TA 2,500 330 670 1,000
XXXXXX, XXXXXX X. XXXXXX, XXXXXX TA - BANKING TA 2,500 248 503 750
CRANE, XXXXXX XXXXX, XXXXXX XXXXXXXX HILLS SU 5,000 330 670 1,000
SUTRO C/F XXXXXXXX, XXXXXX X. XXXXXXXX, XXXXXX TUCSON SU 6,200 627 1,273 1,900
CREBER, XXXX X. XXXXXX, XXXX TA -INST. EQUITY TA 2,500 124 251 375
XXXXX JR., XXXXXX X. XXXXX, XXX XX - FIXED INC. SU 12,500 784 1,591 2,375
XXXXXX, XXXXXXXX XXXXXX, NICK TA - OTC TRADING TA 3,500 124 251 375
SUTRO C/F XXXXXXX, XXXXXXX XXXXXXX, XXXXX WOODLAND HILLS SU 3,500 231 469 700
TA C/F XXXXXX, XXXXX X. XXXXXX, XXXX WORCESTER TA 7,600 502 1,018 1,000 2,520
X'XXXXXXXX, XXXXXX TA 0 0 1,000 1,000
XXXXXXX, XXXX X. XXXXXXX, XXXX XX. MGMT. FR 10,000 495 1,005 1,500
XXX, XXXXXX TA 0 0 1,000 1,000
XXXXXXX, XXXXXX X. XXXXXXX, XXX XXXXXXXXXXX TA 7,100 611 1,240 1,000 2,850
XX XXXXXXXX, XXXXXXX X. XXXXXXXXXX, XXXXXXX XXXXXX TA 7,000 627 1,273 1,900
XXXXXXX, XXXX XXXX XXXXXXX, XXXX XXXX XX. MGMT. SU 10,000 1650 3,350 5,000
DEL XXXXX, XXXXX X. XXXXXXXX, XXXXX FREEDOM CAP FR 6,000 297 603 900
XXXXXX, XXXXXXX TA 0 0 1,000 1,000
XXXXXXX, XXXXXXX X. XXXXXXX, XXXX PHILADELPHIA TA 3,000 297 603 900
XXXXXXXX, XXXXXXX DEUCHEL, XXXXX TA - FIXED INC. TA - 0 0 1,000 1,000
TA C/F XXXXXX, XXXX XXXX XXXXXX, XXX BOSTON TA 5,700 528 1,072 600
XXXXXX, XXXXXXX TA 0 0 1,O00 1,000
XXXXXX, XXXX X. XXXXXX, XXXX ROME TA 5,200 396 804 1,000 2,200
XXXXXXXX, XXXXX X. XXXXXXXX, XXXXX XXXXXXXX TA 5,000 503 1,022 1,525
DODGE, XXXXXX X. DODGE, XXXXXX XX. MGMT. FR 13,500 1485 3,015 4,500
XXXXXXX, XXXXX X. XXXXXXX, XXXX BOSTON TA 3,600 413 838 1,250
XXXXXXX, XXXX X. XXXXXXX, XXXX XXXXXXXX TA 20,000 1980 4,020 6,000
XXXXXX, XXXXX XX 0 0 1,000 1,000
XXXXXXX, XXXXX AND XXXX XXXXXXX, XXXX XX - FIXED INC. SU 2,500 124 251 375
DOTTRINA, XXX TA 0 0 1,000 1,000
XXXXXXXXX, XXX TA 0 0 1,000 1,000
SUTRO C/F XXXXXXXXX, XXXX X. XXXXXXXXX, XXXX XX - MANAGERS SU 2,500 165 335 1,000 1,500
TA C/F DROUGHT, XXXXX X. DROUGHT, XXXXX PROVIDENCE TA 2,500 124 251 375
XXXX, XXXXX X. XXXX, XXXXX XX. MGMT. TA 40,000 6600 13,400 20,000
DURGIN JR., XXXXXX X. XXXXXX, XXXX FREEDOM CAP FR 4,000 198 402 600
EAGLES, LOREN TA 0 0 1,000 1,000
XXXXXXX, XXXXX XX 0 0 1,000 1,000
XXXXXXX, XXXXXX X. XXXXXXX, XXXXXX TA - INST. EQUITY TA 2,500 124 251 375
XXXXXX, XXXXXXX X. XXXXXX, XXXX JHCC TA 2,500 124 251 375
SUTRO C/F XXXXXX, XXXX X. XXXXXX, XXXX XX. MGMT. SU 22,500 3960 8,040 12,000
XXXXX, XXXXXX X. XXXXX, XXXXXX PORTLAND TA 2,500 165 335 500
XXXXXXX, XXXXX X. XXXXXX, XXXXX XXXXXXX TA - RETAIL TA 3,000 165 335 500
TA C/F ENGLISH III, XXXXX XXXXXXX, XXX TA - MANAGERS TA 2,500 165 335 1,000 1,500
XXXXXXX, XXXXXXX X. XXXXXXX, XXXXXXX NY FIFTH AVE TA 4,400 363 737 1,100
Page 3
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XXXXXX XXXXXXX/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX, XXXX XXXXX XXXXXXXX, XXXX XXXXX XXXXXXXXXX TA 8,700 1122 2,278 3,400
ETZEL JR., XXXXX X. XXXXX, XXXX NEW HAVEN TA 4,700 479 972 1,450
XXXXX II, XXXXXXX X. XXXXX, XXXXX SAN XXXX XX 5,000 375 760 1,135
XXXXX, XXXX X. XXXXX, XXXX XXXXXX TA 4,450 545 1,106 1,650
SUTRO C/F FAIERMAN, XXXXXX X. XXXXXXXX, XXXX XXXXXXXX HILLS SU 2,500 165 335 500
XXXXXXXXX, XXXXXXX X. XXXXXXXXX, XXXX SRINGFIELD TA 4,200 363 737 1,100
XXXXXXXXXX, XXXX XXXXXXXXXX, XXXX SANTA XXXX XX - 0 0 1,000 1,000
XXXXXXX, XXXXXX XXXXXXX, XXXXXX NY WORLD FIN TA - 0 0 1,000 1,000
XXXXXXX, XXXXXX X. AND
XXXXX X. CO-TTEES XXXXXXX, XXXXXX XX 2,500 165 335 500
XXXXXXX FAMILY TRUST XXXXXXX, XXXXXX XX 0 0 -
XXXXXXXX, XXXXXXXX X. XXXXXXXX, XXXXX TA - MISC./SYND TA 5,000 248 503 750
XXXXXXX, XXXX X. XXXXXXX, XXXX PHILADELPHIA TA 2,500 271 549 820
XXXXXXX, XXXXX XXXXXXX, XXXXX LA, JOLLA SU 5,600 370 750 1,120
XXXXXX, XXXX XXXXXX, XXXX TA - MANAGERS TA 2,500 165 335 1,000 1,500
XXXXXXX, XXXXXXX SU 2,500 165 335 500
XXXX, XXXXX SU 0 0 1,000 1,000
XXXXXXX, XXXXXX X. XXXXXXX, XXXXX XX - RESEARCH SU 15,000 990 2,010 3,000
XXXXX, XXXXXX X. XXXXX, XXX XXX XXXXXXX XX 3,350 429 871 1,000 2,300
SUTRO C/F XXXXX, XXXXXX X. XXXXX, XXXXXX XX - RESEARCH SU 6,500 429 871 1,300
XXXXXXX II, XXXXXXX X. XXXXXXX, XXX BOSTON TA 5,350 363 737 1,100
TA C/F XXXX, XXXXX X. XXXX, XXX TA - MISC./SYND TA 5,000 548 1,112 1,660
XXXXXX, XXXXXXX X., XXXXXX
X. XXXXXX, XXXX X. XXXXXX, XXXXXXX WATERTOWN TA 14,600 1485 3,015 1,000 5,500
XXXXXXX JR. & XXXXXXX X.
XXXXXX CO-TTEES
XXXXXXX X. XXXXXX
LIVING XX XXXXXX, XXXXXXX XX 0 0
XXXXXX, XXXXX SU 0 0 1,000 1,000
FROST, XXXXXXXX XX 0 0 1,000 1,000
XXXXX, XXXXX X. XXXXX, X.X. ITA - BANKING TA 25,000 2475 5,025 7,500
XXXX, XXX TA 0 0 1,000 1,000
TA C/F G. ABRIELE, XXXXXX XXXXXXXX, XXX XXXXXXXX TA 9,900 726 1,474 1,000 3,200
XXXXXXXX JR., XXXX XXXXXXXX, XXXX XX - OTC SU 2,500 124 251 375
TA C/F XXXXXXXXX, XXXX X. XXXXXXXXX, XXXX GARDEN CITY TA 3,950 264 536 1,000 1,800
XXXXXX, XXXXXX SU 0 0 1,000 1,000
XXXXXXX, XXXXX XXXXX XXXXXXX, XXXX XX - MANAGERS SU - 0 0 1,000 1,000
XXXXXXX, XXXXX X. AND
XXXXX X. JT/WROS XXXXXXX, XXXXX NEW HAVEN TA 2,500 218 442 660
XXXXXX, XXXXXX XXXXXX, XXXXXX XX - FIXED INC. TA 0 0 1,000 1,000
XXXXXXX, XXXXXXXX XXXXXXX, XXXXX FREEDOM CAP FR 6,000 297 603 900
XXXXXXXX, XXXXXXX X. XXXXXXXX, XXXX BOSTON TA 6,850 528 1,072 1,600
XXXXXXXXX, XXXXX TA 0 0 1,000 1,000
XXXX, XXX XXXX, XXX SU- FIXED INC. SU 0 0 1,000 1,000
XXXXXX, XXXX X. XXXXXX, XXXX XXXXXX TA 5,350 363 737 1,100
XXXXXXXX, XXXXXX X. XXXXXXXX, XXX TA - ACCOUNTING TA 5,000 248 503 750
XXXXXX, XXXXXXX XX 0 1,000 1,000
XXXXXXXX, XXXXXXX X. XXXXXXXX, XXXX TA - MANAGERS TA 2,500 124 251 375
XXXXXXX, XXXXX X. XXXXXXX, XXXX XXXXXXXX TA 3,650 429 871 1,300
XXXXXXXXX, XXXX X. XXXXXXXXX, XXXX XX. MGMT. 60,000 9900 20,100 30,000
XXXXXXX, XXXX XX 0 0 1,000 1,000
XXXXXXXX, XXXX X. XXXXXXXX, XXXX XX - RETAIL SU 7,000 462 938 1,000 2,400
TA C/F XXXXX, XXXXX X. XXXXX, XXXXX N Y FIFTH AVE TA 3,250 272 553 825
TA C/F XXXXXX, XXXXXXX X. XXXXXX, XXXX TA - BANKING TA 10,000 495 1,005 1,500
GREEN, XXXXX X. XXXXX, XXXX TA - ACCOUNTING TA 2,500 124 251 375
XXXXXXXX, XXX X. XXXXXXXX, DON SAN XXXX XX 2,500 432 878 1,310
SUTRO C/F GUILLOU SR., XXXXX X. XXXXXXX, XXX XX - MANAGERS SU 10,000 660 1,340 1,000 3,000
Page 4
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XXXXXX XXXXXXX/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
XXXXXXX, XXXXXXX X. XXXXXXX, XXX LOS ANGELES SU 6,200 1089 2,211 3,300
XXXXXXXX, XXXXXX HAEGLIN, XXXXX XX - BANKING SU 2,500 124 251 375
SUTRO C/F XXXX, XXXXXXX XXXX, XXXX SU - OTC SU 2,500 124 251 375
XXXXXXX, XXXXX SU 0 0 1,000 1,000
XXXXXXXX, XXXX XXXXX XXXXXXXX, XXXX XX - BANKING SU 2,500 124 251 375
XXXXXXX, XXXXXXX SU 0 0 1,000 1,000
XXXXXXXX, XXXX X. XXXXXXXX, XXXX TA - MANAGERS TA 5,000 248 503 1,000 1,750
SUTRO C/F XXXXXXXX, XXXX X. XXXXXXXX, XXX LAS VEGAS SU 4,500 297 603 900
XXXXXXXX, XXXXX TA 0 0 1,000 1,000
XXXXXXX, XXXXXX X. XXXXXXX, XXX XX - MANAGERS SU 2,500 165 335 1,000 1,500
XXXXXX, XXXXXXX TA 0 0 1,000 1,000
TA C/F XXXXXX, XXXXX X. XXXXXX, X X BOSTON TA 7,700 825 1,675 2,500
HASTINGS, XXXX X. XXXXXXXX, XXXX TA - PUB FINANCE TA 2,500 124 251 375
HAYES JR., XXXX X. XXXXX, XXXX XXXXXX TA 10,000 759 1,541 2,300
XXXXX, XXXXXXX X. XXXXX, XXX N Y FIFTH AVE TA 7,000 660 1,340 2,000
XXXXX, XXXXXX XXXXX, XXXXXX BOSTON TA - 0 0 1,000 1,000
HEINZ, XXXXXX XXXXX, XXXX XX - OTC SU 2,500 124 251 375
XXXX, XXXXXXX TA 0 0 1,000 1,000
XXXXXX, XXXXXXXXX XXXXXX, XXXXXXXXX TA - MISC./SYND TA 2,500 264 536 800
HIGHFIELD III, XXXX X. XXXXXXXXX, XXXX TA - FLOOR TA 2,500 124 251 375
XXXXXXXXXX, XXXXXXX X. XXXXXXXXXX, XXXXXXX NY WORLD FIN TA 26,550 2290 4,650 2,000 8,940
XXXXXXXX, XXXXXX TA 0 0 1,000 1,000
XXXXXXX, XXXXXX X. XXXXXXX, XXX HARTFORD TA 5,000 528 1,072 1,600
SUTRO C/F HONIBALL, XXXXXX X. XXXXXXXX, XXX FRESNO SU 5,050 333 677 1,000 2,010
XXXXXX JR., HERBERT C HOOLEY, CHIP SYRACUSE TA 2,500 231 469 700
HORGAN, DANIEL SU 0 0 1,000 1,000
TA C/F HOWE, RICHARD V. HOWE, RICHARD FREEDOM CAP FR 6,000 297 603 900
HOWLEY, PATRICK J. HOWLEY, PAT TA - LEGAL TA 2,500 198 402 600
HRISTON, LUKE TA 0 0 1,000 1,000
HUBBARD, CHARLES W. HUBBARD, BILL SAN JOSE SU 21,850 1381 2,804 1,000 5,185
TA C/F HUGHES, JAMES S. HUGHES, JIM NEW BEDFORD TA 4,200 594 1,206 1,000 2,800
HULSMAN, GAVIN D. HULSMAN, GAVIN LOS ANGELES SU 4,800 386 784 1,170
HUMPHREYS, RONALD HUMPHREYS, RONALD TA - INST. EQUITY TA 3,500 180 365 545
SUTRO C/F HUTTON, JAMES B. ' HUTTON, JAMES SU 2,500 165 335 500
IRVING, BOB TA 0 0 1,000 1,000
ISACK, FILIP ISACK, FILIP SAN FRANCISCO SU 10,950 726 1,474 2,200
IVEY, PHILIP M. IVEY, PHIL TA - BANKING TA 2,500 248 503 750
JACKSON, CARRIE SU 0 0 1,000 1,000
JAEGER, JONATHAN TA 0 0 1,000 1,000
JENNINGS, MICHAEL C. JENNINGS, MIKE BOSTON TA 8,000 858 1,742 2,600
JICK, THEODORE S. JICK, THEO BOSTON TA 4,800 363 737 1,100
JODICE, MARY TA 0 0 1,000 1,000
JOHANSEN, ALAN J. JOHANSON, ALAN SU - RETAIL SU 4,000 264 536 1,000 1,800
TA C/F JOHNSON JR., GAYLORD M. JOHNSON, BUCKY PORTLAND, ME TA 6,300 693 1,407 2,100
JUDA, FELIX TRUSTEE
JUDA LIVING TRUST JUDA, FELIX SU - JUDA SU 8,000 396 804 1,200
JUDA, TOM TRUSTEE TOM &
NANCY JUDA LVG TR JUDA, TOM SU - JUDA SU 47,500 3300 6,700 10,000
JUSICK, STEPHEN F. JUSICK, STEVE PRINCETON TA 2,500 231 469 1,000 1,700
JUTROWSKI, EMIL J. JUTROWSKI, EMIL NY WORLD FIN TA 2,500 188 382 570
KABOT, JEFFREY D. KABOT, JEFF SU - BANKING SU 3,000 124 251 375
TA C/F KANE JR., CHARLES F. KANE, CHARLES BOSTON TA 3,500 330 670 1,000
KANE, RICHARD TA 0 0 1,000 1,000
Page 5
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TUCKER ANTHONY/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
KARMAZIN, STEVE SU 0 0 1,000 1,000
KATZNER, DANIEL KATZNER, DAN TA - ARBITRAGE TA 12,500 4125 8,375 12,500
KELLEHER, STEPHEN T. KELLEHER, STEVE SU - FIXED INC. SU 12,500 825 1,675 2,500
TA C/F KELLY, EDWARD JOSEPH KELLY, JOE STAMFORD TA 11,450 693 1,407 1,000 3,100
KELLY, KEVIN SU 0 0 1,000 1,000
KENDALL, PETER G. KENDALL, PETER SU - FIXED INC. SU 2,500 124 251 375
KENNEDY, DANIEL P. KENNEDY, DAN TA - MANAGERS TA 2,500 124 251 1,000 1,375
KERLEY, PHILLIP TA 0 0 1,000 1,000
KERSHNER, MITCHELL R. KERSHNER, MITCH GABRIELE TA 5,000 495 1,005 1,500
KIERNAN JR., EDWARD F. KIERNAN, EDWARD TA - OTC TRADING TA 2,500 124 251 375
KIRBY, DUNCAN R. KIRBY, DUNCAN NEWPORT BEACH SU 2,500 350 710 1,060
KIRKORIAN, LEONARD KIRKORIAN, LEONARD SU - MANAGERS SU 0 0 1,000 1,000
TA C/F KIRSHBAUM, LAWRENCE G. KIRSHBAUM, LARRY TA - ACCOUNTING TA 20,000 1980 4,020 6,000
KLEEHAMMER, WENDEL TA 0 0 1,000 1,000
TA C/F KLEIN, BERNARD KLEIN, BERNIE TA - FLOOR TA 5,000 248 503 750
KOHLI, HARINDER S. KOHLI, HARRY SAN JOSE SU 5,000 554 1,126 1,680
KOKINS, PETER L. KOKINS, PETER TA - OTC TRADING TA 7,500 380 771 1,150
KORCH, KIETH KORCH, KIETH WORCESTER TA - 0 0 1,000 1,000
KOSAR, BRIAN J. KOSAR, BRIAN SUTRO - MISC/SYND SU 10,000 660 1,340 2,000
KRAUS, ARNOLD H. KRAUS, ARNOLD TUCSON SU 9,450 726 1,474 1,000 3,200
TA C/F KRAUSS, PHILIP DAVID KRAUSS, PHILIP GABRIELE TA 3,000 241 489 730
KRAWCZYK, RICHARD A. KRAWCZYK, DICK NASHUA TA 4,800 726 1,474 2,200
LABARTHE, JEFF SU 0 0 1,000 1,000
LADD, CARLETON R. LADD, CARL BOSTON TA 4,700 693 1,407 2,100
TA C/F LA ROCCO, WILLIAM LAROCCO, BILL TA - FIXED INC. TA 2,500 165 335 500
LARSEN, CHUCK LARSEN, CHUCK LOS ANGELES SU - 0 0 1,000 1,000
LAUBSCHER, HAROLD W. LAUBSCHER, HARRY TA - MISC/SYND TA 2,500 165 335 500
LAUGHLIN, LEIGHTON H. LAUGHLIN, LEIGHTON PRINCETON TA 8,000 908 1,843 1,000 3,750
LEE, CHOO-BENG LEE, C.B. SU - RESEARCH SU 5,000 330 670 1,000
LEE, ROBERT TA 0 0 1,000 1,000
LEHRER, ROBERT M.
AND NANCY M. LEHRER, BOB TA - ARBITRAGE TA 25,000 8250 16,750 25,000
LEITH, ALEXANDER LEITH, SANDY BOSTON TA 7,500 891 1,809 2,700
LENT, JEFFREY D. LENT, JEFF BOSTON TA 5,000 330 670 1,000
LESTER, BERNADETTE SU 0 0 1,000 1,000
LEYDEN, PAUL J. LEYDEN, PAUL TA - MANAGERS TA 2,500 124 251 1,000 1,375
LIEBERMAN, PAUL A. LIEBERMAN, PAUL TA - LEGAL TA 2,500 198 402 600
LINN, KURTIS SU 0 0 1,000 1,000
LITTLE, JEFFREY PAGE LITTLE, JEFF PORTSMOUTH TA 5,050 380 771 1,000 2,150
SUTRO C/F LOHBECK, RONALD LOHBECK, RON SAN JOSE SU 5,000 330 670 1,000
TA C/F LOVEJOY, LEE LOVEJOY, LEE TA - MANAGERS TA 5,000 330 670 1,000 2,000
LUBIC, ARTHUR M. LUBIC, ART BEVERLY HILLS SU 2,500 224 456 680
LUIKART, JOHN F. LUIKART, JACK SR MGMT. SU 50,000 8085 16,415 24,500
LUNEBERG, ROBERT H. LUNEBERG, BOB TA - MANAGERS TA 5,000 330 670 1,000 2,000
LYNCH, GERALD R. LYNCH, GERRY TA - MANAGERS TA 2,500 165 335 1,000 1,500
MACARTHUR, SCOTT SU 0 0 1,000 1,000
MADSEN, DANE MADSEN, DANE SU - MANAGERS SU 2,500 165 335 1,000 1,500
MAIN, GEORGE SU 0 0 1,000 1,000
MANGANELLI, PAUL MANGANELLI, PAUL SU - MANAGERS SU 2,500 124 251 375
MANNA, CARL MANNA, CARL SACRAMENTO SU - 0 0 1,000 1,000
MARANDETT, PAUL F. MARANDETT, PAUL FREEDOM CAP FR 2,500 124 251 375
MARRONE; JOHN MARRONE, JOHN SU - MANAGERS SU 2,500 165 335 1,000 1,500
Page 6
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TUCKER ANTHONY/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
MASIELLO, STEPHEN FR 1,000 1,000
MATTALIANO, JOSEPH P. MATTALIANO, JOE TA - INST. EQUITY TA 5,000 248 503 750
MCANDREWS JR.,JAMES J. MCANDREWS, JAMIE TA - INST. EQUITY TA 4,100 0 0 -
TA C/F MCANDREWS JR., JAMES J. MCANDREWS, JAMIE TA - INST. EQUITY TA 15,900 990 2,010 3,000
TA C/F MCCARTHY, ARTHUR E. MCCARTHY, ART BOSTON TA 13,200 1518 3,082 4,600
MCCARTHY, BRIAN TA 0 0 1,000 1,000
MCDANIEL, LAWRENCE SU 0 0 1,000 1,000
MCDONOUGH, MICHAEL S. MCDONOUGH, MIKE SACRAMENTO SU 3,650 307 623 930
MCGARRY, PATRICK TA 0 0 1,000 1,000
MCGEE, GREGG P. AND
MARY C. KEATING MCGEE, GREGG NY WORLD FIN TA 2,500 264 536 800
MACGILVRAY, SCOT D, MCGILVRAY, SCOT TA - BANKING TA 3,000 297 603 900
MCGRATH, IRENE P. &
STEPHEN W. SCHWEIRHART MCGRATH, IRENE NY WORLD FIN TA 5,000 495 1,005 1,500
MCKAY, KEVIN J. MCKAY, KEVIN SR. MGMT. TA 27,500 5280 10,720 16,000
TA C/F MCKEE, CHARLES D. MCKEE, CHARLIE PORTLAND, ME TA 6,300 644 1,307 1,950
MCKEE, PEIRCE MCKEE, PEIRCE OAKLAND SU - 0 0 1,000 1,000
MCKEE, SABRINA L. MCKEE, SABRINA TA - INST. EQUITY TA 2,500 124 251 375
MCMASTER, MIKE TA 0 0 1,000 1,000
TA C/F MEADE, THOMAS F. MEADE, TOM GARDEN CITY TA 7,850 518 1,052 1,570
MECOLI, ANTHONY P. MECOLI, TONY SU - OTC SU 2,500 124 251 375
SUTRO C/F MEEK, LYLE L. MEEK, LYLE SAN LUIS OBISPO SU 3,350 277 563 1,000 1,840
MELMAN, MICHAEL J. MELMAN, MIKE FAIRHAVEN TA 5,900 389 791 1,180
MENCHEL, MARC MENCHEL, MARC TA - LEGAL TA 10,000 990 2,010 3,000
TA C/F MESSALINE, DAVID J. MESSALINE, DAVE BOSTON TA 10,000 1122 2,278 3,400
METTER, DENNIS METTER, DENNIS CHICAGO TA - 0 0 2,000 2,000
METZ, BRIAN TA 0 0 1,000 1,000
MICERA, JOHN P. MICERA, JOHN GABRIELE TA 30,350 3185 6,466 9,650
MICHAELS, EDWARD TA 0 0 2,000 2,000
MILLS, ROBERT A. MILLS, ROCKY SU - MANAGERS SU 11,500 759 1,541 1,000 3,300
MINEHAN, RAYMOND J. MINEHAN, RAY SU 10,000 1980 4,020 6,000
TA C/F MIRANDA, TODD M. MIRANDA, TODD TA - RETAIL TA 2,500 132 268 400
TA C/F MOHAN, NATESH C. MOHAN, NAT TA - M.I.S. TA 3,000 149 302 450
MOITZ, BILL TA 0 0 1,000 1,000
MONAHAN, STEPHEN T. MONAHAN, STEVE WILTON, CT TA 4,200 393 797 1,190
MOON, BILL MOON, BILL SU - OTC SU 2,500 124 251 375
MOORE JR., CHARLES MOORE, CHARLIE SU - FIXED INC. SU 3,500 173 352 525
MORAN, DOUGLAS A, MORAN, DOUG NY WORLD FIN TA 3,350 221 449 670
MORI, ARTHUR MORI, ARTHUR OAKLAND SU - 0 0 1,000 1,000
MORRIS, JOHN M. MORRIS, JOHN SU - BANKING SU 12,000 924 1,876 2,800
MORTON, THOMAS MORTON, SKIP TA - RETAIL TA 2,500 165 335 500
MOSBERG, ROBERT MOSBERG, BOB TA - ARBITRAGE TA 30,000 3960 8,040 12,000
MUDARRI, JOSEPH G. MUDARRI, JOE BOSTON TA 3,950 743 1,508 2,250
MULLIGAN, HARRY TA 0 0 1,000 1,000
MULLIN, LEO R. AND
PATRICIA L. MULLIN
JTWROS MULLIN, LEO BURLINGTON TA 4,200 432 878 1,310
MULLIN, EDWARD & LUCINDA
COOKE MULLIN MULLIN, WOODY NY WORLD FIN TA 4,800 518 1,052 1,570
MUNTER, DAN MUNTER, DAN BEVERLY HILLS SU 2,500 190 385 575
MURPHY, JOHN TA 0 0 1,000 1,000
MURPHY, MARK TA 0 0 1,000 1,000
MURPHY, MICHAEL J. MURPHY, MIKE BOSTON TA 5,050 446 905 1,350
MURRAY, ROBERT SU 0 0 1,000 1,000
MURTHA, JEFFREY L. MURTHA, JEFF PORTLAND, ME TA 4,800 403 817 1,220
MUTTERPERL, MURIEL TA 0 0 1,000 1,000
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TUCKER ANTHONY/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
TA C/F MYERS, THEODORE W. MYERS, TED PHILADELPHIA TA 2,500 165 335 500
NASH, THOMAS J. NASH, TOM TA - MANAGERS TA 20,000 990 2,010 2,000 5,000
SUTRO C/F NESBIT, BRUCE D. NESBITT, BRUCE SU - JUDA SU 2,500 124 251 375
SUTRO C/F NISSIM, MATOOK R. NISSIM, M. SU 2,500 165 335 500
NOLAN, JAMES D. NOLAN, JIM BURLINGTON TA 10,000 660 1,340 1,000 3,000
NYDEGGER, RICHARD NYDEGGER, DICK SOUTHAMPTON TA 15,000 1452 2,948 1,000 5,400
O'BRIEN, C. DAVID O'BRIEN, DAVE TA - INST. EQUITY TA 5,000 248 503 750
O'DELL, BRIAN FR 0 0 1,000 1,000
OGLE, DAVID H. OGLE, DAVID FREEDOM CAP FR 3,500 198 402 600
OHANIAN, ABE S. OHANIAN, ABE LOS ANGELES SU 5,900 1109 2,251 3,360
OLSEN, CHRISTIANE OLSEN, CHRIS GABRIELE TA 6,750 584 1,188 1,770
OLSON, JOSEPH &
PATRICIA OLSON OLSON, JOE SU - FIXED INC. SU 2,500 124 251 375
O'NEILL, ROBERT F. O'NEILL, ROBERT TA - RETAIL TA 10,000 660 1,340 2,000
OSTEHAUS, NED TA 0 0 1,000 1,000
OVERSTREET, LISA SU 0 0 1,000 1,000
PABST, ROBERT E. PABST, BOB TA - FIXED INC. TA 2,500 124 251 375
PALLIN, JOHATHON SU 0 0 1,000 1,000
PALMER, ARNOLD PALMER, ARNOLD SU - JUDA SU 10,000 660 1,340 2,000
TA C/F PALMER, JAMES W. PALMER, JIM MORRISTOWN TA 4,500 528 1,072 1,600
PASKAL, STEVEN TA 0 0 1,000 1,000
PATANE, VICTOR J. PATANE, VIC TA - PUB FINANCE TA 2,500 124 251 375
PATE, ROBERT A. PATE, BOB LAS VEGAS SU 3,000 198 402 600
PATEL, RAMESH C. PATEL, RAMESH TA - ACCOUNTING SU 2,500 124 251 375
PEARSON IV, JONATHAN PEARSON, JON SCHENECTADY TA 5,600 627 1,273 1,900
PEER, MIKE PEER, MIKE TA - FIXED INC. TA 2,500 124 251 375
PERVERE, FRANCIS D. PERVERE, JACK HARTFORD TA 3,350 446 905 1,350
PETERSON, ROBERT PETERSON, ROBERT CHICAGO TA 0 0 2,000 2,000
PHILLIPPE, JOHN R. PHILLIPPE, DICK SCHENECTADY TA 4,600 429 871 1,000 2,300
PHILLIPS, JERRY D. &
CARLA CROSS PHILLIPS PHILLIPS, JERRY SR. MGMT. SU 22,500 3960 8,040 12,000
PHIPPS, GREG PHIPPS, GREG SU - RETAIL SU - 0 0 1,000 1,000
PICKELL, CURT TA 0 0 1,000 1,000
PIKE, JAMES PIKE, JIM SAN FRANCISCO SU 4,200 277 563 840
PINTO, MARK AND LISA PINTO, MARK SU - FIXED INC. SU 7,000 347 704 1,050
PORCELLI, DEBORAH TA 0 0 1,000 1,000
TA C/F PRINZIVALLI, JOSEPH G. PRINZIVALLI, JOE TA - FIXED INC. TA 5,000 248 503 750
RAAKA, SCOTT SU 0 0 1,000 1,000
RAY, JENNA TA 0 0 2,000 2,000
REED, FRAN TA 0 0 1,000 1,000
REEDY, MONTY SU 0 0 1,000 1,000
REGAN, KATHLEEN REGAN, KATHY TA- BANKING TA 15,000 1485 3,015 4,500
RENDALL, DOUGLAS B. RENDALL, DOUG PRINCETON TA 3,350 363 737 1,100
RENDALL JR., JAMES H. RENDALL, JIM PRINCETON TA 4,200 726 1,474 2,200
RICE, MARK C. RICE, MARK SU - JUDA SU 10,000 660 1,340 2,000
RICH, PAUL RICH, PAUL TA - FIXED INC. TA 2,500 124 251 375
RICHARDSON, PATRICIA L. RICHARDSON, PATTY SU - JUDA SU 2,500 124 251 375
RICHTER, STEVEN A. RICHTER, STEVE TA - RESEARCH TA 2,500 124 251 375
RIDGE, JOHN J. RIDGE, JODY TA - FLOOR TA 5,000 248 503 750
RIDGE, THOMAS V. RIDGE, THOMAS TA - OTC TRADING TA 22,500 2970 6,030 9,000
RIDPATH, JOHN P. RIDPATH, JOHN TA - INST. EQUITY TA 2,500 124 251 375
RIGATTI, TOM SU 0 0 1,000 1,000
TA C/F RIPP, ROBERT H. RIPP, ROBERT BOSTON TA 4,150 281 570 850
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TUCKER ANTHONY/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
TA C/F ROBERTS, JOSEPH T. ROBERTS, JOE BOSTON TA 8,550 990 2,010 3,000
RODRIGUEZ, FERNANDO E. RODRIGUEZ, FRED TA - M.I.S. TA 2,500 124 251 375
TA C/F ROEDER, LEE ROEDER, LEE TA - MANAGERS TA 10,000 495 1,005 1,000 2,500
ROGAN, JACK ROGAN, JACK ROCHESTER TA 2,500 218 442 660
ROMAN, WILLIAM E. &
DEBORAH C. ROMAN, BILL TA - BANKING TA 25,000 2475 5,025 7,500
ROMANO, CHRISTOPHER ROMANO, CHRIS TA - ACCOUNTING TA 2,500 124 251 375
ROSEN, ARTHUR TA 0 0 1,000 1,000
ROSENBERG, MARC ROSENBERG, MARC SAN FRANCISCO SU - 660 1,340 2,000
ROUSE, MICHAEL J. ROUSE, MIKE TA - FLOOR TA 2,500 124 251 375
ROWLAND, EDWARD S. ROWLAND, NED BOSTON TA 3,650 505 1,025 1,530
ROY, STEVEN P. ROY, STEVE SU - MANAGERS SU 4,000 264 536 800
RUBANO, ALEX TA 0 0 1,000 1,000
RUBIN, REED RUBIN, REED NY FIFTH AVE TA 2,500 314 637 950
RUIMERMAN, J. FRANCIS RUIMERMAN, FRANK HARTFORD TA 11,200 710 1,441 2,000 4,150
RULISON, MICHAEL E. RULISON, MIKE SYRACUSE TA 9,700 941 1,910 1,000 3,850
RUSH, GREGORY R. RUSH, GREG TA - BANKING TA 7,000 693 1,407 2 100
RUSSELL, MARK TA 0 0 1,000 1,000
SAGOUSPE, KENT SU 0 0 1,000 1,000
SALTER, LOU TA 0 0 1,000 1,000
SAMPSON, ROBERT P. SAMPSON, BOB TA - MANAGERS TA 8,500 561 1,139 1,000 2,700
SANDERSON, DEREK FR 0 0 1,000 1,000
SARGIS, RON SARGIS, RON CHICAGO TA - 0 0 2,000 2,000
SAVAGE, MIKE TA 0 0 1,000 1,000
SAVITSKY, VICTOR SAVITSKY, VICTOR NY WORLD FIN TA 3,350 264 536 800
SCALZO. RONALD W. SCALZO, RONALD TA - FLOOR TA 2,500 124 251 375
SCHULLER, EDWARD J. SCHULLER, ED SAN FRANCISCO SU 5,000 601 1,219 1,820
SCRANTON, SARAH H. SCRANTON, SARAH FREEDOM CAP FR 2,500 124 251 375
SEGEL, ROBERT G. SEGEL, ROBERT ROBERT SEGEL TA 41,100 4620 9,380 14,000
SHAPIRO, IRWIN H. SHAPIRO, IRWIN BEVERLY HILLS SU 2,500 165 335 500
SHARKEY, ROBERT J. SHARKEY, BOB GABRIELE TA 7,850 776 1,575 2,350
SHAW, RICHARD H. SHAW, DICK BIG BEAR, CA SU 3,500 231 469 700
SHEPARD, J. POWERS SHEPARD, J STAMFORD TA 7,200 693 1,407 2,100
SHIROCKY, JAY SHIROCKY, JAY TA - FLOOR TA 2,500 124 251 375
SUTRO C/F SILVERS, CRAIG M. SILVERS, CRAIG SU - RESEARCH SU 3,000 198 402 600
SKINNER, MICHAEL SU 0 0 1,000 1,000
SMITH, ARTHUR TA 0 0 1,000 1,000
SMITH, BEN TA 0 0 1,000 1,000
SMITH, GERALD SU 0 0 1,000 1,000
SOLOMON, LAWRENCE J. SOLOMAN, LARRY WOODLAND HILLS SU 9,850 736 1,494 2,230
SORRENTINO, ANTHONY V. SORRENTINO, ANTHONY TA - OTC TRADING TA 10,000 495 1,005 500
SPENCER, MICHAEL M. SPENCER, MIKE FREEDOM CAP FR 8,000 396 804 1,200
SQUITERI, PHILIP SQUITERI, BILL TA - OTC TRADING TA 2,500 330 670 1,000
STACK, CHARLES PATRICK STACK, PAT SU - MANAGERS SU 7,000 462 938 1,000 2,400
STAMM, MAURA TA 0 0 1,000 1,000
TA C/F STANEK SR., DENNIS J. STANEK, DENNIS HARTFORD TA 4,200 485 985 1,470
STANEK JR., DENNIS J. STANEK, DENNIS II HARTFORD TA 5,500 462 938 1,400
TA C/F STARK, STEPHEN H. STARK, STEVE NY FIFTH AVE TA 8,550 439 891 1,000 2,330
STAUNTON, JOHN TA 0 0 2,000 2,000
STEPANIK, CARL TA 0 0 1,000 1,000
TAC/F STEPHENSON, MARK STEPHANSON, MARK SU FIXED INC. SU 2,500 124 251 375
STEPHENS, THOMAS S. STEPHENS, TOM TA - INST. EQUITY TA 10,000 495 1,005 1,500
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STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
---------------------------------------------------------------------------------------------------------------------------------
STOCKBRIDGE, CHARLES TA 0 0 1,000 1,000
STRATTON, JENNIFER TA 0 0 1,000 1,000
STRINGER, PAUL E. STRINGER, PAUL TA - M.I.S. TA 7,500 371 754 1,125
SULLIVAN, JOHN P. SULLIVAN, JOHN TA - INST. EQUITY TA 12,500 660 1,340 2,000
TANSEY, ROBERT F. TANSEY, BOB GABRIELE TA 6,450 637 1,293 1,930
THAYER, EDMUND SU 0 0 1,000 1,000
THOM, CAROL THOM, CAROL SANTA MARIA SU 5,000 330 670 1,000
THOM. NElL THOM, NElL SANTA MARIA SU 0 0 1,000 1,000
THOMAS, REBECCA SU 0 0 1,000 1,000
THWING, JARED R. THWING, JARED TA - OTC TRADING TA 2,500 330 670 1,000
TIETBOHL, JON A. TIETBOHL, JON TA - BANKING TA 25,000 2475 5,025 7,500
TILLMAN, FRED TA 0 0 1,000 1,000
TINGLE, ROBERT TA 0 0 1,000 1,000
TODD, VINCENT T. AND
KELLY TODD JTWROS TODD, VIN BOSTON TA 2,500 248 503 750
TOLLEFSON, ED SU 0 0 1,000 1,000
TOMPA, ALEXANDER
TA 0 0 1,000 1,000
TRASK, BOURKE C. TRASK, BOURKE BANGOR TA 6,000 660 1,340 1,000 3,000
TUCKER JR., DAVID &
ANN M. TTEES, TUCKER
FAMILY TRUST TUCKER JR., DAVID OAKLAND SU 7,850 1033 2,097 3,130
TUFFNELL, STUART A. TUFFNELL, STU MORRISTOWN TA 4,500 446 905 1,350
TUMINELLO, MICHAEL TUMINELLO, MICHAEL TA - RETAIL TA 8,500 825 1,675 2,500
TURANO, VINCENZO TURANO, ENZO NY FIFTH AVE TA 20,000 2310 4,690 7,000
UNDERDAHL, T. HANS UNDERDAHL, HANS PORTLAND, ME TA 2,500 205 415 620
VANDERBERG, GERARD T. VANDERBERG, JERRY TA - FIXED INC. TA 2,500 165 335 500
VARNEY, ELLEN FR 0 0 1,000 1,000
VENNARD, LAURA & THOMAS E.
MAHONY JTWROS VENNARD, LAURA TA - MISC./SYND TA 2,500 124 251 375
WALKER, JEFFREY A. WALKER, JEFF TA - ARBITRAGE TA 2,500 825 1,675 2,500
WALSH, RICHARD M. WALSH, RICK TA - FIXED INC. TA 4,000 198 402 600
WASSERMAN, MICHAEL B. WASSERMAN, MIKE BOSTON TA 4,500 366 744 1,110
WEBER, KATHY TA 0 0 1,000 1,000
VERMUT-WEINBERGER
LIVING TRUST WEINBERGER, TOM SR. MGMT. SU 22,500 4122 8,368 12,490
WEISMAN, JOHN WEISMAN, JOHN BEVERLY HILLS SU - 0 0 1,000 1,000
WENDELIN, SCOTT E. WENDELIN, SCOTT SU - BANKING SU 10,000 825 1,675 2,500
WEST, RICHARD TA 0 0 1,000 1,000
WESTON, COLLEEN SU - 0 0 1,000 1,000
WHITAKER, PAUL FR 0 0 1,000 1,000
WHITE, JOHN J. WHITE, JOHN BOSTON TA 5,600 380 771 1,150
WHITFIELD, MARGARET WHITFIELD, MARGARET TA- RESEARCH TA 0 0 2,000 2,000
WIESSONBORN, JOHN WIESSONBORN, JOHN CHICAGO TA 0 0 3,000 3,000
WILLFONG, DON WILLFONG, DON LOS ANGELES SU 16,850 3023 6,137 9,160
WILLIAMS, ALAN WILLIAMS, ALAN SU - OTC SU 7,500 495 1,005 1,500
WILLIAMS JR., ROBERT L. WILLIAMS, BOB SU - PUB FINANCE SU 4,000 330 670 1,000
WILSHINSKY, STEPHEN J. WILSHINSKY, STEVE WOODLAND HILLS SU 736 1,494 2,230
WING, JIM TA 0 0 1,000 1,000
TA C/F WING, THOMAS G. WING, TOM PROVIDENCE TA 11,800 1023 2,077 3,100
WODARK, GREG SU - 0 0 1,000 1,000
WORKMAN, WAYNE L. AND
SHARON SHAY WORKMAN, WAYNE TA - PUB FINANCE TA 7,500 371 754 1,125
YARMOLINSKY, TOBIAS YARMOLINSKY, TOBY TA - PUB FINANCE TA 2,500 124 251 375
YATES, SAMUEL SU 2,500 165 335 500
SUTRO C/F YENOFSKY, PAUL YENOFSKY, PAUL SU - MANAGERS SU 12,000 792 1,608 1,000 3,400
YEVICH, ROBERT H. YEVICH, BOB SR. MGMT. TA 50,000 8085 16,415 24,500
YOUNG, PETER SU 0 0 1,000 1,000
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TUCKER ANTHONY/SUTRO
STOCK OFFERING WORKSHEET
IRA'S CERTIFICATE EMPLOYEES TIME FIRM IND.
PURCHASER'S NAME NAME DEPT/LOCATION FIRM STOCK OPTIONS OPTIONS PERF. TOTALS
-----------------------------------------------------------------------------------------------------------------------------------
YOUNGMAN JR., GERALD E. & CANDICE H. YOUNGMAN, GERRY CONCORD TA 2,500 228 462 1,000 1,600
TA C/F ZARRA, MICHAEL ZARRA, MIKE FAIRHAVEN TA 3,950 264 536 800
JOHN HANCOCK FREEDOM SECURITIES J. HANCOCK FREEDOM 21,850
TOTALS 2,508,600 247,500 502,499 215,000
