STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT is dated as of March 14, 1997, by and
among Anvil Holdings, Inc., a Delaware corporation (the "Company"), Bruckmann,
Xxxxxx, Xxxxxxxx & Co., L.P., a Delaware limited partnership ("BRS"), 399
Venture Partners, Inc., a Delaware corporation ("399 Venture", and together with
BRS, the "Investors"), CCT II Partners, L.P., a Delaware limited partnership
("CCT"), Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, and
any other executives of the Company and its Subsidiaries acquiring Common Stock
(as defined below) from the Company after the date hereof and executing a
joinder hereto in the form attached as Exhibit A (collectively, the
"Executives", and individually an "Executive"), the Persons set forth on the 399
Individual Investors Signature Page attached hereto (collectively, the "399
Individual Investors", and individually a "399 Individual Investor") and the
Persons set forth on the BRS Individual Investors Signature Page attached hereto
(collectively, the "BRS Individual Investors", and individually a "BRS
Individual Investor"). 000 Xxxxxxx, XXX, XXX, the 399 Individual Investors, the
BRS Individual Investors and each of the Executives and their respective
Permitted Transferees (as defined below) are collectively referred to as the
"Stockholders" and individually as a "Stockholder".
WHEREAS, the Stockholders have acquired or retained shares of the
Company's Class A Common Stock, par value $.01 per share (the "Class A Common"),
and shares of the Company's Class B Common Stock, par value $.01 per share (the
"Class B Common"), pursuant to that certain Recapitalization Agreement, dated as
of February 12, 1997, by and among the Stockholders (provided, that an Affiliate
of 399 Venture, and not 399 Venture, is a party thereto), the Company, and
certain other parties thereto, as amended from time to time (the
"Recapitalization Agreement"), in the amounts set forth on Schedule A hereto.
WHEREAS, the Company and the Stockholders desire to enter into this
Agreement for the purposes, among others, of (i) establishing the composition of
the Company's Board (as defined below), (ii) assuring continuity in the
management and ownership of the Company and (iii) limiting the manner and terms
by which the Stockholder Shares (as defined below) may be transferred.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"399 Venture Stockholder Shares" means all Stockholder Shares issued
or issuable to 399 Venture, CCT, the 399 Individual Investors and their
respective Permitted Transferees.
"Affiliate" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction
of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Board" means the Company's board of directors.
"BRS Stockholder Shares" means all Stockholder Shares issued or
issuable to BRS, the BRS Individual Investors and their respective Permitted
Transferees.
"Common Stock" means, collectively, the Class A Common, the Class B
Common, the Company's Class C Common Stock, par value $.01 per share, and any
other class of common stock of the Company and any other class of securities of
the Company which is not limited to a fixed sum or percentage of par value or
stated value in respect of the rights of the holders thereof to participate in
dividends and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company.
"Executive Shares" means Stockholder Shares owned by Executives or
their Permitted Transferees.
"Family Group" means, with respect to an individual Stockholder,
such Stockholder's spouse, siblings and descendants (whether natural or adopted)
and any trust solely for the benefit of such Stockholder and/or such
Stockholder's spouse or siblings, their respective ancestors and/or descendants
(whether natural or adopted).
"Independent Third Party" means any Person who, immediately prior to
the contemplated transaction (i) does not own in excess of 5% of the Common
Stock on a fully diluted basis (a "5% Owner"), (ii) is not controlling,
controlled by or under common control with any such 5% Owner and (iii) is not
the spouse or descendent (by birth or adoption) of any such 5% Owner or a trust
for the benefit of such 5% Owner and/or such other Persons.
"Other Stockholders" means, with respect to a Stockholder, all
Stockholders other than such Stockholder.
"Ownership Ratio" means, as to a Stockholder at the time of
determination, the percentage obtained by dividing the amount of shares of
Common Stock held by such Stockholder on a fully diluted basis at such time by
the aggregate amount of shares of Common Stock outstanding on a fully diluted
basis at such time. For the purpose of calculating the Ownership Ratio for any
of (i) 000 Xxxxxxx, XXX or the 399 Individual Investors, such Stockholders shall
be aggregated and shall be deemed to have, as a group, their aggregate Ownership
Ratio, and (ii) BRS or the BRS Individual Investors, such Stockholders shall be
aggregated and shall be deemed to have, as a group, their aggregate Ownership
Ratio.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
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"Public Sale" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the Securities Act or to the public
effected through a broker, dealer or market maker pursuant to the provisions of
Rule 144 under the Securities Act.
"Qualified Public Offering" means the sale, in an underwritten
public offering registered under the Securities Act, of shares of the Company's
Common Stock having an aggregate value of at least $30 million.
"Registration Rights Agreement" means that certain Registration
Rights Agreement, dated as of the date hereof, by and among the Company, the
Stockholders and the initial purchaser named therein, as amended, restated or
modified from time to time.
"Regulatory Problem" has the meaning set forth in Section 10(b).
"Sale of the Company" means the sale of the Company to an
Independent Third Party or group of Independent Third Parties pursuant to which
such party or parties acquire (i) capital stock of the Company possessing the
voting power under normal circumstances to elect a majority of the Company's
board of directors (whether by merger, consolidation, sale, transfer or exchange
of the Company's capital stock) or (ii) all or substantially all of the
Company's assets determined on a consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Stockholder Shares" means (i) any Common Stock held by the
Stockholders and (ii) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in clause (i) above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular shares constituting Stockholder Shares, such shares will cease to be
Stockholder Shares when they have been sold in a Public Sale, an Approved Sale,
or upon the consummation of a Qualified Public Offering. For purposes of this
Agreement, a Person will be deemed to be a holder of Stockholder Shares whenever
such Person has the right to acquire directly or indirectly such Stockholder
Shares (upon conversion or exercise in connection with a transfer of securities
or otherwise, but disregarding any restrictions or limitations upon the exercise
of such right), whether or not such acquisition has actually been effected.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such Person or Persons shall be allocated a majority of
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partnership, association or other business entity gains or losses or shall be or
control the managing director or a general partner of such partnership,
association or other business entity.
"Transaction Documents" means the following agreements: this
Agreement, the Registration Rights Agreement, the Recapitalization Agreement,
and the Unitholders Agreement.
"Unitholders Agreement" means that certain Registration Rights and
Securityholders Agreement, by and among the initial purchaser named therein,
BRS, 399 Venture, and the Company, as amended, restated or modified from time to
time.
2. Board of Directors.
(a) Until the provisions of this Section 2 cease to be effective, to
the extent permitted by law, each Stockholder shall vote all voting securities
of the Company over which such Stockholder has voting control, and shall take
all other necessary or desirable actions within such Stockholder's control
(whether in such Stockholder's capacity as a stockholder, director, member of a
board committee or officer of the Company or otherwise, and including, without
limitation, attendance at meetings in Person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder meetings),
so that:
(i) the authorized number of directors on the Board shall mutually
be established at eight. There will be two Executive Directors, three BRS
Directors and three 399 Venture Directors (in each case as defined below),
in each case to be designated as follows:
(A) Certain employees of the Company shall serve as
directors (the "Executive Directors"). The Executive
Directors will be:
(1) Xxxxxxx Xxxxxx, for so long as he is the duly
elected and acting Chairman of the Board and Chief
Executive Officer of the Company; and
(2) Xxxxx Xxxxxxxxx, for so long as he is the duly
elected and acting Chief Administrative Officer of
the Company;
provided, that any Executive Director no longer so
elected and acting in such positions shall be removed as
a director of the Company, and shall be replaced with a
director designated by the holders of a majority of the
Executive Shares (excluding, for this purpose, such
Executive Director).
(B) The holders of a majority of the 399 Venture Stockholder
Shares will be entitled to designate three directors
(the "399 Venture Directors").
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(C) The holders of a majority of the BRS Stockholder Shares
will entitled to designate three directors (the "BRS
Directors").
(ii) if the Board so requests at any time, the composition of the
board of directors of each of the Company's Subsidiaries (a "Sub Board")
shall be the same as that of the Board;
(iii) the Board and each Sub Board shall create a Compensation
Committee, which shall consist of one 399 Venture Director, one BRS
Director, and one Executive Director;
(iv) any committees of the Board or a Sub Board (other than the
Compensation Committee) shall be created only upon the approval of a
majority of the voting power of the Board (which majority must include the
approval of the BRS Directors and the 399 Venture Directors) and the
composition of each such committee (if any) shall consist of one 399
Venture Director, one BRS Director, and one Executive Director;
(v) any director shall be removed from the Board, a Sub Board or any
committee thereof (with or without cause) at the written request of the
Stockholder or Stockholders which have the right to designate such a
director hereunder, but only upon such written request and under no other
circumstances (in each case, determined on the basis of a vote or consent
of the Stockholders referred to in clause (i)(A), (i)(B) or (i)(C) above,
as the case may be); provided, that in no case may the directors referred
to in clauses (i)(A)(1) and (i)(A)(2) above be removed from the Board or
Sub Board as long as such directors are duly elected and acting in the
offices set forth in clauses (i)(B)(1) and (i)(B)(2), respectively;
(vi) in the event that any representative designated hereunder for
any reason ceases to serve as a member of the Board or a Sub Board or any
committee thereof during such representative's term of office, the
resulting vacancy on the Board or such Sub Board or committee shall be
filled by a representative designated by the Stockholders referred to in
clause (i)(A), (i)(B) or (i)(C), as the case may be.
(b) Except as set forth in Section 5 of this Agreement, each action
of the Board or such Sub Board shall require the approval of a majority of the
Board and the approval of the BRS Directors and the 399 Venture Directors voting
on such action to constitute an action of the Board, or of any Sub Board.
(c) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the Board
or any Sub Board and any committee thereof.
(d) If any party fails to designate a representative to fill a
directorship pursuant to the terms of this Section 2, the election of a Person
to such directorship shall be accomplished in accordance with the Company's
bylaws, certificate of incorporation, and applicable law. In the event that any
provision of the Company's bylaws or certificate of incorporation is
inconsistent with any provision of this Section 2, the Stockholders shall take
such action as may be necessary to amend
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any such provision in the Company's bylaws or certificate of incorporation to
remedy such inconsistency.
3. Conflicting Agreements. Each Stockholder represents that such
Stockholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with or conflicts with the provisions of
this Agreement, and no holder of Stockholder Shares shall grant any proxy or
become party to any voting trust or other agreement which is inconsistent with
or conflicts with the provisions of this Agreement.
4. Restrictions on Transfer of Stockholder Shares.
(a) Tag Along Rights. Subject to Sections 4(c) and 4(d) and other
than in connection with a Public Sale or an Approved Sale, at least 30 days
prior to any sale, transfer, assignment, pledge or other disposal (a "Transfer")
of Stockholder Shares by the Investor making such a Transfer (the "Transferring
Stockholder") shall deliver a written notice (the "Sale Notice") to the Company
and the Other Stockholders, specifying in reasonable detail the identity of the
prospective transferee(s), the number and class of Stockholders Shares to be so
transferred and the terms and conditions of the Transfer. The Other Stockholders
may elect to participate in the contemplated Transfer by delivering written
notice to the Transferring Stockholder within 15 days after delivery of the Sale
Notice. If any Other Stockholders have elected to participate in such Transfer,
each of the Transferring Stockholder and such Other Stockholders shall be
entitled to sell in the contemplated Transfer, at the same price and on the same
terms, a number of Stockholder Shares of any class equal to the product of (i)
the quotient determined by dividing the percentage of Stockholder Shares owned
by such Stockholder by the aggregate percentage of Stockholder Shares owned by
the Transferring Stockholder and the Other Stockholders participating in such
Transfer and (ii) the aggregate number of Stockholder Shares to be sold in the
contemplated Transfer. Each Stockholder transferring Stockholder shares pursuant
to this Section 4(a) shall pay its pro rata share (based on the number of
Stockholder shares to be sold) of the expenses incurred by the Stockholders in
connection with such transfer and shall be obligated to join on a pro rata basis
(based on the number of Stockholder shares to be sold) in any indemnification or
other obligations that the Transferring Stockholder agrees to provide in
connection with such Transfer (other than any such obligations that relate
specifically to a particular Stockholder such as indemnification with respect to
representations and warranties given by a Stockholder regarding such
Stockholder's title to and ownership of Stockholder shares); provided, that no
Stockholder shall be obligated in connection with such Transfer to agree to
indemnify or hold harmless the transferees with respect to an amount in excess
of the net cash proceeds paid to such Stockholder in connection with such
Transfer. The parties hereto acknowledge and agree that certain other
stockholders of the Company will also participate in such Transfers pursuant to
the Unitholders Agreement.
(b) First Offer Rights. Subject to Sections 4(c) and 4(d), at least
45 days prior to any Transfer of Stockholder Shares by any Executive, or any of
their Permitted Transferees (other than pursuant to an Approved Sale), the
Person making such Transfer (the "Offering Stockholder") shall deliver a written
notice (the "Transfer Notice") to the Company and to the Investors (the
"Investor Offeree(s)"), specifying in reasonable detail the number and class of
Stockholder Shares proposed to be transferred, the proposed purchase price
(which shall be payable solely in cash) and
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the other terms and conditions of the Transfer. The Company may elect to
purchase all or any (but not, together with the Investor Offeree(s), less than
all) of the Stockholder Shares to be transferred, upon the same terms and
conditions as those set forth in the Transfer Notice, by delivering a written
notice of such election to the Offering Stockholder within 30 days after the
Transfer Notice has been delivered to the Company. If the Company has not
elected to purchase all of the Stockholder Shares to be transferred, the
Investor Offeree(s) (or their designees) may elect to purchase all (but not, in
the aggregate, less than all) of the Stockholder Shares to be transferred, upon
the same terms and conditions as those set forth in the Transfer Notice, by
giving written notice of such election to the Offering Stockholder within 20
days after the Transfer Notice has been given to the Investor Offeree(s) (the
"Investor Option Period"); provided, that if both Investor Offerees make such
election, such Stockholder Shares shall be allocated among the Investor Offerees
on a pro rata basis in accordance with the relative number of Stockholder Shares
held by such Investor Offerees. If neither the Company nor the Investor
Offeree(s) (or their designees) elects to purchase all, in the aggregate, of the
Stockholder Shares specified in the Transfer Notice, then the Offering
Stockholder may transfer the Stockholder Shares specified in the Transfer Notice
to the designated transferee at a price and on terms no more favorable to the
transferee(s) thereof than specified in the Transfer Notice during the 60-day
period immediately following the expiration of the Investor Option Period. Any
Stockholder Shares not transferred within such 60-day period will be subject to
the provisions of this Section 4(b) upon subsequent Transfer.
(c) Permitted Transfers. The restrictions contained in this Section
4 shall not apply with respect to any Transfer of Stockholder Shares by any
Stockholder (i) in the case of an individual Stockholder, pursuant to applicable
laws of descent and distribution or to any member of such Stockholder's Family
Group, and (ii) in the case of the Investors and their Permitted Transferees,
(A) among their Affiliates, employees and consultants, (B) to any employee,
prospective employee, director or prospective director of the Company or any
Affiliate of the Company, (C) to any former or prospective employee, director or
prospective director of an Investor or any Affiliate of such Affiliate, (D) to
any Person in order to resolve a Regulatory Problem, or (E) to third parties not
to exceed 10% of such Investor's Stockholder Shares held as of the date hereof;
provided, that the restrictions contained in this Section 4 shall continue to be
applicable to such Stockholder Shares after any such Transfer; and provided
further, that the transferees of such Stockholder Shares shall have agreed in
writing to be bound by the provisions of this Agreement which affect the
Stockholder Shares so transferred by executing a joinder in the form
substantially attached hereto as Exhibit A. All transferees permitted under this
Section 4(c) are collectively referred to herein as "Permitted Transferees."
(d) Termination of Restrictions. The restrictions set forth in this
Section 4 shall continue with respect to each Stockholder Share until the
earlier of (i) the Transfer of such Stockholder Share in a Public Sale or an
Approved Sale, or (ii) the consummation of a Qualified Public Offering.
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5. Sale of the Company; Initial Public Offering.
(a) Notwithstanding any provision to the contrary contained herein,
(i) at any time, both the holders of a majority of the 399 Venture Stockholder
Shares and the holders of a majority of the BRS Stockholder Shares, acting
together as a group may require, and (ii) after March 14, 2001, either the
holders of a majority of the 399 Venture Stockholder Shares or the holders of a
majority of the BRS Stockholder Shares (the "Sale Stockholders") may require,
that the Company enter into a Sale of the Company by providing written notice of
such request (an "Exit Notice") to the Company. Upon receipt of an Exit Notice,
(i) the Company shall, in accordance with the provisions of this Agreement,
proceed to consummate a Sale of the Company, and (ii) the Board shall be deemed
to have approved such sale (an "Approved Sale").
(b) If the Company has received an Exit Notice in accordance with
Section 5(a) above, unless the holders of a majority of the 399 Venture
Stockholder Shares and the holders of a majority of the BRS Stockholder Shares
agree otherwise, the Board will engage a nationally recognized investment bank
to assist in the sale, which firm shall be reasonably acceptable to the holders
of a majority of the 399 Venture Stockholder Shares and the holders of a
majority of the BRS Stockholder Shares.
(c) In the event of an Approved Sale, the Board and the Stockholders
shall proceed as set forth in this Section 5(d).
(i) Each holder of Stockholder Shares will take such action as
is (A) necessary or desirable in order to cause the Board to effect a Sale
of the Company, or (B) requested by the directors designated by the Sale
Stockholders (the "Sale Directors") in order to facilitate the Sale of the
Company, in each case with a view to accomplishing such Sale of the
Company as soon as is reasonably practicable (but in any event
consummating such Sale of the Company within six months of the date of the
Exit Notice).
(ii) Each holder of the Stockholder Shares will consent to and
raise no objections to the Approved Sale or to the process by which such
Approved Sale is effectuated. If the Approved Sale is structured as a
merger or consolidation, each of the holders of Stockholder Shares will
waive any dissenter rights, appraisal rights or similar rights in
connection with such merger or consolidation. If the Approved Sale is
structured as a sale of stock (whether by merger, consolidation,
reorganization or otherwise), each of the holders of Stockholder Shares
will agree to sell all of his Stockholder Shares and rights to acquire
Stockholder Shares on the terms and conditions approved by the Sale
Directors. If the Approved Sale is structured as a sale of assets, each of
the holders of Stockholder Shares will take all actions necessary to cause
a liquidation of the Company following the consummation of such Approved
Sale.
(iii) The obligations of the holders of the Stockholder Shares
with respect to the Approved Sale of the Company are also subject to the
satisfaction of the following conditions: (x) the consideration received
in an Approved Sale shall be distributed among the holders of Stockholder
Shares in the manner which such proceeds would be distributed
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in a complete liquidation of the Company pursuant to the rights and
preferences set forth in the Certificate of Incorporation as in effect
immediately prior to such Approved Sale; (y) the receipt by the Company
from an investment bank of nationally recognized standing, which shall be
the same investment bank described in Section 5(b) or, if there is no such
investment bank, which shall be a nationally recognized investment bank
reasonably acceptable to the holders of a majority of the 399 Venture
Stockholder Shares and the holders of a majority of the CVC Stockholder
Shares of a written fairness opinion that the consideration received in
such Approved Sale is fair and adequate, and (z) all holders of then
currently exercisable rights to acquire, directly or indirectly, shares of
any class of Common Stock will be given an opportunity either to (A)
exercise such rights prior to the consummation of the Approved Sale and
participate in such sale as holders of such class of Common Stock or (B)
receive in exchange for such rights, following the consummation of the
Approved Sale, consideration equal to the amount determined by multiplying
(1) the same amount of consideration per share of such class of Common
Stock receivable by the holders of such class of Common Stock in
connection with the Approved Sale less the exercise price, conversion
price or any other consideration per share of such class of Common Stock
payable upon exercise or conversion of such right to acquire, directly or
indirectly, such class of Common Stock by (2) the number of shares of such
class of Common Stock represented by such rights.
(iv) In the event of a sale or exchange by the holders of
Stockholder Shares of all or substantially all of the Stockholder Shares
(whether by sale, merger, recapitalization, reorganization, consolidation,
combination or otherwise), each holder of Stockholder Shares shall receive
consideration for the Stockholder Shares held by such holder in the same
proportion of the aggregate consideration from such sale or exchange that
such holder would have received if such aggregate consideration had been
distributed by the Company in complete liquidation pursuant to the rights
and preferences set forth in the Certificate of Incorporation as in effect
immediately prior to such sale or exchange.
(v) If the Company or the Sale Stockholders enter into any
negotiation or transaction for which Rule 506 promulgated under the
Securities Act (or any similar rule then in effect) may be available with
respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), the holders of Stockholder Shares
will, at the request of the Board, appoint a purchaser representative (as
such term is defined in Rule 501 promulgated under the Securities Act)
reasonably acceptable to the Board. If any holder of Stockholder Shares
appoints the purchaser representative designated by the Board, the Company
will pay the fees of such purchaser representative, but if any holder of
Stockholder Shares declines to appoint the purchaser representative
designated by the Board, such holder will appoint another purchaser
representative (reasonably acceptable to the Board), and such holder will
be responsible for the fees of the purchaser representative so appointed.
(vi) Each holder of Stockholder Shares (or other Persons
receiving consideration pursuant to Section 5(c)(iii) above) will bear its
pro rata share (based upon the aggregate proceeds received by such
Stockholder) of the costs of any sale of Stockholder Shares pursuant to an
Approved Sale to the extent such costs are incurred for the benefit of
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all holders of Common Stock and are not otherwise paid by the Company or
the acquiring party (costs incurred by any holder of Stockholder Shares on
its own behalf will not be considered costs of the transaction hereunder)
and will be obligated to join on a pro rata basis (based on the number of
Stockholder Shares to be sold) in any indemnification or other obligations
that the Sale Stockholders agree to provide in connection with such Sale
of the Company (other than any such obligations that relate specifically
to a particular Stockholder such as indemnification with respect to
representations and warranties given by a Stockholder regarding such
Stockholder's title to and ownership of Stockholder Shares); provided,
that no Stockholder shall be obligated in connection with such Sale of the
Company to agree to indemnify or hold harmless the transferees with
respect to an amount in excess of the net cash proceeds paid to such
Stockholder in connection with such Sale of the Company.
(d) In the event that an initial public offering of shares of Common
Stock, registered under the Securities Act (a "Public Offering"), is to occur
pursuant to a Demand Registration (as defined in the Registration Rights
Agreement), the Stockholders will take all necessary and desirable actions in
consummation of any such Public Offering. In the event that such Public Offering
is an underwritten offering and the managing underwriters advise the Company
that in their opinion the Common Stock structure may adversely affect the
marketability of the offering, the Stockholders will vote for a recapitalization
and/or exchange of the Stockholder Shares into securities (the "Reclassified
Securities") that the managing underwriters and the BRS Directors and the CVC
Directors find acceptable; provided, that (i) the Reclassified Securities
provide each Stockholder with the same relative economic and voting interest as
such Stockholder had prior to such recapitalization and/or exchange and is
consistent with the rights and preferences set forth in the Certificate of
Incorporation as in effect immediately prior to such Public Offering, and (ii)
in the event that 399 Venture determines in its reasonable good faith judgment
that, as a result of receiving the Reclassified Securities, a Regulatory Problem
exists, then (x) 399 Venture may elect not to accept only the portion of such
Reclassified Securities which would cause such Regulatory Problem; provided, at
399 Venture's request, the Company shall issue to 399 Ventures, in lieu of
Reclassified Securities, nonvoting securities which shall otherwise be identical
in all respects to such securities constituting Reclassified Securities, except
that it (i) shall be nonvoting, (ii) shall be convertible into a voting security
(including the securities constituting Reclassified Securities) on such terms as
are requested by 399 Ventures in light of the applicable regulatory
considerations then prevailing, and (iii) may not, at 399 Venture's request, be
a common equity security.
6. Legend. In addition to any legend required by any other
Transaction Document, each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED ON MARCH 14, 1997, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THE TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO A STOCKHOLDERS
AGREEMENT DATED AS OF MARCH 14, 1997, BY AND AMONG THE ISSUER OF
SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding prior to the date hereof. The legend set forth above shall be
removed from the certificates evidencing any shares which cease to be
Stockholder Shares.
7. Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be null and void, and the Company shall not record such Transfer
on its books or treat any purported transferee of such Stockholder Shares as the
owner of such shares for any purpose.
8. Transfer of Stockholder Shares.
(a) Stockholder Shares are transferable only pursuant to (i) public
offerings registered under the Securities Act, (ii) subject to the provisions of
Section 4 above, Rule 144 or Rule 144A (or any similar rule or rules then in
effect) of the Securities and Exchange Commission if such rule is available, and
(iii) subject to Section 4 or 5 and Section 8(b) below, any other legally
available means of Transfer.
(b) In connection with the Transfer of any Stockholder Shares other
than a Transfer described in clause (i) or (ii) of Section 8(a) above, the
holder thereof shall deliver written notice to the Company describing in
reasonable detail the Transfer or proposed Transfer, together with an opinion of
counsel reasonably acceptable to the Company to the effect that such Transfer of
Stockholder Shares may be effected without registration of such Stockholder
Shares under the Securities Act. In addition, if the holder of the Stockholder
Shares delivers to the Company an opinion of counsel that no subsequent Transfer
of such Stockholder Shares shall require registration under the Securities Act,
the Company shall promptly upon such contemplated Transfer deliver new
certificates for such Stockholder Shares which do not bear the legend set forth
in Section 6 above. If the Company is not required to deliver new certificates
for such Stockholder Shares not bearing such legend, the holder thereof shall
not consummate a Transfer of the same until the prospective transferee has
confirmed to the Company in writing its agreement to be bound by the conditions
contained in this Section 8 and Section 6 above.
- 11 -
(c) Upon the request of a holder of Stockholder Shares, the Company
shall promptly supply to such Person or its prospective transferees all
information regarding the Company required to be delivered in connection with a
Transfer pursuant to Rule 144A (or any similar rule or rules then in effect) of
the Securities and Exchange Commission.
(d) Upon the request of any holder of Stockholder Shares, the
Company shall remove the legend set forth in Section 6 above from the
certificates for such holder's Stockholder Shares; provided, that such
Stockholder Shares are eligible for sale pursuant to Rule 144(k) (or any similar
rule or rules then in effect) of the Securities and Exchange Commission.
9. Pre-emptive Rights. If the Company issues any shares of Common
Stock or any securities containing options or rights to acquire any shares of
Common Stock or any securities convertible or exchangeable for Common Stock in
each case, after the date hereof to an Investor or any Affiliate of an Investor,
the Company will offer to sell to each Other Stockholder a number of such
securities ("Offered Shares") so that the Ownership Ratio immediately after the
issuance of such securities for each Stockholder would be equal to the Ownership
Ratio for such Stockholder immediately prior to such issuance of securities. The
Company shall give each Stockholder at least 30 days prior written notice of any
proposed issuance, which notice shall disclose in reasonable detail the proposed
terms and conditions of such issuance (the "Issuance Notice"). Each Stockholder
will be entitled to purchase such securities at the same price, on the same
terms, and at the same time as the securities are issued by delivery of written
notice to the Company of such election within 15 days after delivery of the
Issuance Notice (the "Election Notice"); provided, that (i) if more than one
type of security was issued, each Stockholder shall, if it exercises its rights
pursuant to this Section 9, purchase such securities in the same ratio as issued
and (ii) the holders of the majority of the BRS Stockholder Shares shall make
the election for all such holders, and the holders of the majority of the
holders of the 399 Venture Stockholder Shares shall make the election for all
such holders, in each case for purposes of this Section 9. If any of the
Stockholders have elected to purchase any Offered Shares, the sale of such
shares shall be consummated as soon as practical (but in any event within 10
days) after the delivery of the Election Notice. In the event that any
Stockholder elects to purchase Offered Shares, at such Stockholder's request
(which request shall be included in the Election Notice), the Company shall
issue to such Stockholders, in lieu of the securities constituting Offered
Shares, nonvoting securities which shall otherwise be identical in all respects
to such securities constituting Offered Shares, except that it (i) shall be
nonvoting, (ii) shall be convertible into a voting security (including the
securities constituting Offered Shares) on such terms as are requested by such
Stockholder in light of the applicable regulatory considerations then
prevailing, and (iii) may not, at Stockholder's request, be a common equity
security. In the event any Stockholder elects not to exercise its rights
pursuant to this Section 9, no other Stockholder shall have the right to
purchase the securities offered to such Stockholder.
10. SBA Provisions.
(a) Number of Stockholders. As long as 399 Venture holds any of the
Stockholder Shares, the Company shall notify 399 Venture (i) at least 15 days
prior to taking any action after which the number of record holders of the
Company's voting stock would be increased to 50 or more, and (ii) of any other
action or occurrence after which the number of record holders
- 12 -
of the Company's voting stock was increased (or would increase) to 50 or more,
as soon as practicable after the Company becomes aware that such other action or
occurrence has occurred or is proposed to occur.
(b) Regulatory Compliance Cooperation. In the event that 399 Venture
determines that there is a Regulatory Problem (as defined below), the Company
agrees to take all such actions as are reasonably requested by 399 Venture in
order (i) to effectuate and facilitate any transfer by 399 Venture of any
securities of the Company then held by 399 Venture to any Person designated by
399 Venture, (ii) to permit 399 Venture (or any of its Affiliates) to exchange
all or a portion of any voting security then held by it on a share-for-share
basis for shares of a nonvoting security of the Company, which nonvoting
security shall be identical in all respects to the voting security exchanged for
it, except that it shall be nonvoting and shall be convertible into a voting
security on such terms as are requested by 399 Venture in light of regulatory
considerations then prevailing, and (iii) to continue and preserve the
respective allocation of the voting interests with respect to the Company
provided for herein. Such actions may include, but shall not necessarily be
limited to entering into such additional agreements, adopting such amendments to
the Certificate of Incorporation and bylaws of the Company and taking such
additional actions as are reasonably requested by CVC in order to effectuate the
intent of the foregoing. For purposes of this Agreement, a "Regulatory Problem"
means any set of facts or circumstances wherein it has been asserted by any
governmental regulatory agency (or 399 Venture believes that there is a
substantial risk of such assertion) that 399 Venture is not entitled to hold, or
exercise any significant right with respect to, its Stockholder Shares.
11. Information Rights.
(a) Financial Statements and Other Information. The Company shall
deliver to each Investor (so long as such Investor holds any Stockholder
Shares):
(i) as soon as available but in any event within 30 days after the
end of each monthly accounting period in each fiscal year, unaudited
consolidating and consolidated statements of income and cash flows of the
Company and its Subsidiaries for such monthly period and for the period
from the beginning of the fiscal year to the end of such month, and
unaudited consolidating and consolidated balance sheets of the Company and
its Subsidiaries as of the end of such monthly period, setting forth in
each case comparisons to the Company's annual budget and to the
corresponding period in the preceding fiscal year, and all such statements
shall be prepared in accordance with generally accepted accounting
principles, consistently applied, subject to the absence of footnote
disclosures;
(ii) within 90 days after the end of each fiscal year, consolidating
and consolidated statements of income and cash flows of the Company and
its Subsidiaries for such fiscal year, and consolidating and consolidated
balance sheets of the Company and its Subsidiaries as of the end of such
fiscal year, setting forth in each case comparisons to the Company's
annual budget and to the preceding fiscal year, all prepared in accordance
with generally accepted accounting principles, consistently applied, and
accompanied by (A) with respect to the consolidated portions of such
statements, an opinion of an independent
- 13 -
accounting firm of recognized national standing acceptable to the holders
of a majority of BRS Stockholder Shares and the holders of a majority of
the 399 Venture Stockholder Shares, (B) a certificate from such accounting
firm, addressed to the Board, stating that in the course of its
examination nothing came to its attention that caused it to believe that
there was any default by the Company or any Subsidiary in the fulfillment
of or compliance with any of the terms, covenants, provisions or
conditions of any material agreement to which the Company or any
Subsidiary is a party or, if such accountants have reason to believe any
default by the Company or any Subsidiary exists, a certificate specifying
the nature and period of existence thereof, and (C) a copy of such firm's
annual management letter to the Board;
(iii) at least 30 days but not more than 90 days prior to the
beginning of each fiscal year, an annual budget prepared on a monthly
basis for the Company and its Subsidiaries for such fiscal year
(displaying anticipated statements of income and cash flows and balance
sheets), and promptly upon preparation thereof any other significant
budgets prepared by the Company and any revisions of such annual or other
budgets, and within 30 days after any monthly period in which there is a
material adverse deviation from the annual budget, an officer's
certificate explaining the deviation and what actions the Company has
taken and proposes to take with respect thereto;
(iv) promptly (but in any event within five business days) after the
discovery or receipt of notice of any default under any material agreement
to which it or any of its Subsidiaries is a party, or any other material
adverse change, event or circumstance affecting the Company or any
Subsidiary (including, without limitation, the filing of any material
litigation against the Company or any Subsidiary or the existence of any
dispute with any Person which involves a reasonable likelihood of such
litigation being commenced), an officer's certificate specifying the
nature and period of existence thereof and what actions the Company and
its Subsidiaries have taken and propose to take with respect thereto;
(v) within ten days after transmission thereof, copies of all
financial statements, proxy statements, reports and any other general
written communications which the Company sends to its stockholders and
copies of all registration statements and all regular, special or periodic
reports which it files, or any of its officers or directors file with
respect to the Company, with the United States Securities and Exchange
Commission or with any securities exchange on which any of its securities
are then listed, and copies of all press releases and other statements
made available generally by the Company to the public concerning material
developments in the Company's and its Subsidiaries' businesses; and
(vi) with reasonable promptness, such other information and
financial data concerning the Company and its Subsidiaries as any Investor
may reasonably request.
(b) Inspection of Property. The Company shall permit any
representatives designated by any Investor, upon reasonable notice and during
normal business hours and at such other times as any such holder may reasonably
request, to (i) visit and inspect any of the properties of the Company and its
Subsidiaries, (ii) examine the corporate and financial records of the
- 14 -
Company and its Subsidiaries and make copies thereof or extracts therefrom and
(iii) discuss the affairs, finances and accounts of any such corporations with
the directors, officers, key employees and independent accountants of the
Company and its Subsidiaries. The presentation of an executed copy of this
Agreement by any Investor to the Company's independent accountants shall
constitute the Company's permission to its independent accountants to
participate in discussions with such Persons.
12. Termination. This Agreement will automatically terminate and be
of no further force or effect immediately after the earlier of the consummation
of (i) an Approved Sale or (ii) a Qualified Public Offering.
13. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company or the holders of not
less than a majority of the 399 Venture Stockholder Shares and a majority of the
BRS Stockholder Shares, respectively; provided, that no such modification,
amendment or waiver which adversely and prejudicially affects the Executives
vis-a-vis all Other Stockholders shall be effective against the Executives
without the prior written consent of the holders of not less than 51% of the
Executive Shares. For the avoidance of doubt, an amendment to add another party
to this Agreement is not an action which, in and of itself, affects any
Stockholder adversely and prejudicially vis-a-vis Other Stockholders. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
14. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
15. Entire Agreement. Except as otherwise expressly set forth
herein, this document and the other Transaction Documents embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
16. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
- 15 -
17. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
18. Remedies. The parties hereto shall be entitled to enforce their
rights under this Agreement specifically to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company, and any Stockholder may in his, hers, or its
sole discretion apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive relief (without posting a bond or
other security) in order to enforce or prevent any violation of the provisions
of this Agreement.
19. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when delivered personally,
mailed by certified or registered mail, return receipt requested and postage
prepaid, or sent via a nationally recognized overnight courier, or sent via
facsimile to the recipient accompanied by a certified or registered mailing.
Such notices, demands and other communications will be sent to the address
indicated below:
To the Company:
Anvil Holdings, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Administrative Officer
Telecopy No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To any holder of BRS Stockholder Shares:
c/o Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telecopy No.: (000) 000-0000
- 16 -
With a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To any holder of 399 Venture Stockholder Shares:
c/o 399 Venture Partners, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To any of the Executives:
Anvil Knitwear, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Executive's Name]
Telecopy No.: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
20. Governing Law. The corporate law of Delaware shall govern all
issues concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity and interpretation of this
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of New York, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York.
- 17 -
21. Waiver of Jury Trial. Each of the parties hereto hereby waive,
to the extent permitted by applicable law, trial by jury in any litigation in
any court with respect to, in connection with, or arising out of this Agreement
or the validity, protection, interpretation or enforcement thereof. Each of the
parties hereto hereby agree that this section is a specific and material aspect
of this Agreement and would not enter into this Agreement if this section were
not part of this Agreement.
22. Time of the Essence; Computation of Time. Time is of the essence
for each and every provision of this Agreement. Whenever the last day for the
exercise of any privilege or the discharge or any duty hereunder shall fall upon
a Saturday, Sunday, or any date on which banks in New York City, New York are
authorized to be closed, the party having such privilege or duty may exercise
such privilege or discharge such duty on the next succeeding day which is a
regular business day.
23. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
- 18 -
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the date first above written.
ANVIL HOLDINGS, INC.
By:
---------------------------------------
Name:
Title:
BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
By: BRS Partners, Limited Partners
Its: General Partner
By:
---------------------------------------
Name:
Title:
399 VENTURE PARTNERS, INC.
By:
---------------------------------------
Name:
Title:
CCT II PARTNERS, L.P.
By: CCT I Corporation
Its: General Partner
By:
---------------------------------------
Name:
Title:
XXXXXXX XXXXXX
-------------------------------------------
XXXXX XXXXXXXXX
-------------------------------------------
XXXXXXX XXXXXXX
-------------------------------------------
XXXXXXX XXXXXX
-------------------------------------------
399 INDIVIDUAL INVESTORS
SIGNATURE PAGE FOR
STOCKHOLDERS AGREEMENT
XXXXX XXXX XXXXX X. XXXXXX
----------------------------------- --------------------------------------
NATASHA PARTNERSHIP XXXX XXXXX
----------------------------------- --------------------------------------
XXXXXX XXXXXXXXX XXXXXX X. XXXXXX
----------------------------------- --------------------------------------
BRS INDIVIDUAL INVESTORS
SIGNATURE PAGE FOR
STOCKHOLDERS AGREEMENT
XXXXX XXXXXXXXX XXXXXXX XXXXXXXX
----------------------------------- --------------------------------------
XXXXXX XXXXXXXXX NAZ PARTNERSHIP
----------------------------------- --------------------------------------
BCB PARTNERSHIP XXXXXX XXXXXX
----------------------------------- --------------------------------------
XXXXX XXXXX XXXXXX X. XXXXXXXX
----------------------------------- --------------------------------------
XXXX X. XXXXXXXX XXXX X. XXXXXXXX XXX
----------------------------------- --------------------------------------
EXHIBIT A
FORM OF JOINDER TO
STOCKHOLDERS AGREEMENT
THIS JOINDER to the Stockholders Agreement, dated as of March 14,
1997 by and among Anvil Holdings, Inc., a Delaware corporation (the "Company"),
and certain stockholders of the Company (the "Agreement"), is made and entered
into as of _________ by and between the Company and _________________
("Holder"). Capitalized terms used herein but not otherwise defined shall have
the meanings set forth in the Agreement.
WHEREAS, Holder has acquired certain shares of Common Stock ("Holder
Stock"), and the Agreement and the Company requires Holder, as a holder of
Common Stock, to become a party to the Agreement, and Holder agrees to do so in
accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Joinder hereby agree as
follows:
1. Agreement to be Bound. Holder hereby agrees that upon execution
of this Joinder, it shall become a party to the Agreement and shall be fully
bound by, and subject to, all of the covenants, terms and conditions of the
Agreement as though an original party thereto and shall be deemed a Stockholder
[and an Executive/Investor] for all purposes thereof. In addition, Holder hereby
agrees that all Common Stock held by Holder shall be deemed Stockholder Shares
for all purposes of the Agreement
2. Successors and Assigns. Except as otherwise provided herein, this
Joinder shall bind and inure to the benefit of and be enforceable by the Company
and its successors and assigns and Holder and any subsequent holders of Holder
Stock and the respective successors and assigns of each of them, so long as they
hold any shares of Holder Stock.
3. Counterparts. This Joinder may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
4. Notices. For purposes of Section 19 of the Agreement, all
notices, demands or other communications to the Holder shall be directed to:
[Name]
[Address]
[Facsimile Number]
5. Governing Law. The corporate law of Delaware shall govern all
issues concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity and interpretation of this
Joinder shall be governed by and construed in accordance with the domestic laws
of the State of New York, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York.
6. Descriptive Headings. The descriptive headings of this Joinder
are inserted for convenience only and do not constitute a part of this Joinder.
* * * * *
A-2
IN WITNESS WHEREOF, the parties hereto have executed this Joinder as
of the date first above written.
ANVIL HOLDINGS, INC.
By:
---------------------------------------
Name:
Title:
[HOLDER]
By:
---------------------------------------
