STOCKHOLDERS AGREEMENT
by and among
PCA INTERNATIONAL, INC.
and
CERTAIN OF THE HOLDERS OF ITS COMMON STOCK
Dated as of August , 1998
TABLE OF CONTENTS
Page
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Section 1. Certain Definitions.................................................2
Section 2. Restrictions on Transfer...........................................11
2.1 Common Stock Subject To This Agreement.............................11
2.2 General Restriction................................................12
2.3 Transfers of Common Stock and Option Shares by Management
Stockholders.......................................................13
2.4 Tag-Along Right....................................................14
2.5 Drag-Along Right...................................................16
2.6 Transfers Following Initial Public Offering and Other Transfers....17
Section 3. Call Options.......................................................20
3.1 Call Options of the Company and the Principal Stockholder..........20
3.2 Closing............................................................25
3.3 Termination of Call Options........................................25
Section 4. Registration Rights................................................26
Section 5. Changes in Common Stock; Option Plan; Other........................26
5.1 Changes in Common Stock............................................26
5.2 Registration of Option Shares......................................26
Section 6. Transferees Subject to Agreement...................................27
Section 7. Legends............................................................27
Section 8. Miscellaneous......................................................28
8.1 Amendment..........................................................28
8.2 Governing Law......................................................28
8.3 Execution in Counterparts..........................................28
8.4 Notices............................................................29
8.5 Entire Agreement; Headings; Gender.................................29
8.6 Copy of Agreement with Company.....................................30
8.7 Specific Performance...............................................30
8.8 Assignment.........................................................30
8.9 Third Party Beneficiary............................................31
Exhibit A Parties
Exhibit B Repurchase Percentages
Exhibit C Form of Registration Rights Agreement
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STOCKHOLDERS AGREEMENT
----------------------
STOCKHOLDERS AGREEMENT (the "Agreement"), dated as of August , 1998, by
and among PCA INTERNATIONAL, INC., a North Carolina corporation (the "Company"),
JUPITER PARTNERS II L.P., a Delaware limited partnership ("Jupiter"), and the
other parties listed on Exhibit A hereto under the caption "Management
Stockholders" (Jupiter and the Management Stockholders are collectively referred
to herein as the "Stockholders," which term shall also include any Person who
hereafter becomes a party to this Agreement in accordance with the terms
hereof). Capitalized terms used herein and not otherwise defined shall have the
mean ings specified in Section 1.
W I T N E S S E T H :
WHEREAS, the Stockholders are the holders of a substantial portion of
the issued and outstanding shares of Common Stock of the Company;
WHEREAS, the Company has entered into employment and non-competition
agreements with each of the Management Stockholders (each, a "Employment
Agreement");
WHEREAS, concurrently with the execution of this Agreement, pursuant to
that certain Stock Option Plan of the Company (the "Option Plan") (i) the
Company is granting to the Management Stockholders options to purchase shares of
Common Stock ("Management Options") at a per share exercise price of $26.50 per
share, and (ii) the Management Stockholders are "rolling over" previously
outstanding options to
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purchase shares of Common Stock ("Management Roll-over Options"), subject to the
terms and conditions set forth in the Option Plan; and
WHEREAS, the parties hereto wish to provide for certain rights and
obligations of the Stockholders with respect to the transfer, purchase and other
rights affecting the Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Certain Definitions. For the purposes of this Agreement, the
following terms and phrases have the following meanings:
"Affiliate" means, (i) with respect to any natural Person, the spouse
of such Person, either parent of such Person or of such Person's spouse, any
descendant of any such parent, or any relative of such Person who has the same
home as such Person, and (ii) with respect to any other Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such Person. For purposes of this definition, the term "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Affiliated Transferee," with respect to the Principal Stockholder,
means (i) any Affiliate of the Principal Stockholder, (ii) any employee or
partner of the
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Principal Stockholder or (iii) any employee or partner of any Affiliate of the
Principal Stockholder.
"Board" means the Board of Directors of the Company.
"business day" shall mean any day except a Saturday, Sunday or other
day on which commercial banks in New York, New York, are authorized by law to
close.
"Call for Breach" shall have the meaning specified in Section 3.1.4.
"Call for Cause" shall have the meaning specified in Section 3.1.1.
"Call for Resignation" shall have the meaning specified in Section
3.1.2.
"Call Option" shall mean any right of the Company or the Principal
Stockholder to purchase Call Shares from a Management Stockholder under Section
3.
"Call Shares" shall mean any Option Shares (or any outstanding
Management Options or Management Roll-over Options held by a Management
Stockholder but not yet exercised) with respect to which the Company or the
Principal Stockholder would have a purchase right if a Management Stockholder
ceased to be employed by the Company or any of its subsidiaries for any of the
reasons specified in Section 3.1.
"Call Without Cause" shall have the meaning specified in Section 3.1.3.
"Cause," with respect to any Management Stockholder, shall mean (i) a
reasonable good faith determination by the Board that the Management Stockholder
has, in any material respect, willfully failed to follow any of the Company's
written policies or any written directives of the Board (other than by reason of
a voluntary resignation or resignation for Good Reason) and, if such failure is
susceptible of being
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cured as determined by the Board in good faith, the failure of the Management
Stockholder to cure such failure within 10 business days after receiving written
notice (stating with specificity the nature of such failure) from the Board; or
(ii) any act of willful misconduct, fraud or personal dishonesty by the
Management Stockholder involving the assets of the Company or any of its
Affiliates resulting in material economic or material reputational harm to the
Company; or (iii) the conviction of, or a plea of guilty or nolo contendere by,
the Management Stockholder to a charge of any crime involving a felony; or (iv)
the breach by the Management Stockholder in any material respect of any contract
or other agreement between the Company or any of its Affiliates and the
Management Stockholder and, if such breach is susceptible of being cured as
determined by the Board in good faith, the failure of the Management Stockholder
to cure such breach within 10 business days after receiving written notice
(stating with specificity the nature of such failure) from the Board;
notwithstanding the foregoing, with respect to those Management Stockholders who
are parties to employment agreements with the Company, and such agreements
contain a definition of "Cause," the term "Cause" herein shall be deemed to have
the meaning set forth in such employment agreement.
"Change in Control" shall mean (i) such time as the Principal
Stockholder has disposed of at least one-half of the shares of Common Stock
owned by the Principal Stockholder as of the date of this Agreement (as set
forth on Exhibit A) and no longer owns at least a majority of the outstanding
Common Stock of the Company or (ii) the consummation of a sale of all or
substantially all of the assets of the Company and its subsidiaries (other than
to the Principal Stockholder or any
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Affiliate of the Company); provided, that a Change in Control shall only be
deemed to have occurred if after the event specified in clause (i) the Company
does not have any publicly-traded securities.
"Common Stock" means the common stock, par value $.20 per share, of the
Company and any other shares of capital stock of the Company classified as
common stock hereafter authorized.
"Company" means PCA International, Inc., a North Carolina corporation.
"Disability," with respect to a Management Stockholder, shall be
defined in the long-term disability plan maintained by the Company.
"Drag-Along Right" shall have the meaning specified in Section 2.5.
"Employment Agreement" shall have the meaning specified in the recitals to this
Agreement.
"Encumbrance" means any mortgage, lien, security interest, pledge,
claim, option, right of first refusal or other like encumbrance with respect to
any share of Common Stock, and "Encumber" shall have a correlative meaning.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean (A) after the Initial Public Offering,
the average of the last reported sales price of the Common Stock for the 30
consecutive trading days immediately preceding the date on which any such
determination is to be made, as reported by NASDAQ National Market System or a
national securities
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exchange, and (B) prior to the Initial Public Offering, the fair market value
per share of Common Stock as determined in good faith by the Board.
"50% Disposition Date" shall mean such time as the Principal
Stockholder has disposed of at least one-half of the shares of Common Stock
owned by the Principal Stockholder as of the date hereof (as set forth on
Exhibit A).
"Fully Diluted Shares" shall mean the total number of the Company's
outstanding shares of Common Stock on a fully diluted, fully converted basis
(assuming the exercise of all options and other securities convertible or
exchangeable into or exercisable for Common Stock).
"Good Reason," with respect to a Management Stockholder, means (i) a
material reduction of such Management Stockholder's base salary payable during
any fiscal year by the Company and its Subsidiaries or the requirement by the
Company that the Management Stockholder perform tasks which would be demeaning
or degrading to one in his position, (ii) the failure of the Company to pay such
Management Stockholder his base salary or any of his material benefits to which
he is entitled to be paid during any fiscal year, if such failure is not cured
within ten days of written notice thereof to the Company, or (iii) material
breach by the Company of any material contract or agreement between the Company
and such Management Stockholder.
"Initial Public Offering" means the first Public Offering after the
date of this Agreement which yields gross proceeds to the Company in excess of
$25,000,000 pursuant to an effective registration statement under the Securities
Act and which results in the listing or continual listing of such Common Stock
on a national securities
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exchange or the quotation of such Common Stock on the NASDAQ National Market
System.
"in-the-money," with respect to options or other securities convertible
into Common Stock, shall mean any options or other such securities the Fair
Market Value of whose underlying shares of Common Stock exceeds the then
applicable exercise price.
"Involuntary Transfer," with respect to any shares of Common Stock,
means any involuntary Transfer, proceeding or action (other than a Transfer on
the death of a Management Stockholder) by or in which a Stockholder (or his
Permitted Transferee) shall be deprived or divested of any right, title or
interest in or to any of its shares of Common Stock, including, without
limitation, any seizure under levy of attachment or execution, any Transfer in
connection with bankruptcy (whether pursuant to the filing of a voluntary or an
involuntary petition under any applicable bankruptcy law) or other court
proceeding to a debtor-in-possession, trustee in bankruptcy or receiver or other
officer or agency, any Transfer to a state or to a public officer or agency
pursuant to any statute pertaining to escheat or abandoned property, any
Transfer pursuant to a divorce action or any Transfer upon or occasioned by the
legal incompetence of any Stockholder (or his Permitted Transferee) or any
Transfer to a legal representative of any Stockholder (or his Permitted
Transferee).
"Management Options" shall have the meaning specified in the recitals
to this Agreement.
"Management Roll-over Options" shall have the meaning specified in the
recitals to this Agreement.
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"Management Stockholders" means the individuals listed on Exhibit A
under the caption "Management Stockholders," any Stockholder who acquires Common
Stock from a Management Stockholder and who becomes a party to this Agreement,
and any other Stockholder (including any Person who acquires Option Shares) who
hereafter becomes a party to this Agreement and is denominated as a "Management
Stockholder."
"Notice" shall have the meaning specified in Section 2.4.
"Option Plan" shall have the meaning specified in the recitals to this
Agreement.
"Option Shares" shall mean any shares of Common Stock issued pursuant
to the exercise of a Management Option or a Management Roll-over Option.
"Option Share Restriction Period" shall mean any time prior to August
21, 2006.
"Permitted Transferee" means, with respect to a Stockholder who is a
natural person, (a) the spouse, parents, parents-in-law or siblings (by blood or
adoption) of such Stockholder or the lineal descendants (by blood or adoption)
of such Stockholder or such Stockholder's spouse, parents or siblings, (b) a
trust, the beneficiaries of which include only such Stockholder or spouse,
parents, or siblings (by blood or adoption) of such Stockholder or the lineal
descendants (by blood or adoption) of such Stockholder, spouse, parents or
siblings, or a charitable trust that is an Affiliate of such Stockholder, or (c)
upon such Stockholder's death, executors, administrators, testamentary trustees,
legatees or beneficiaries of such Stockholder.
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"Person" shall mean an individual, firm, corporation, limited liability
company, partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Potential Participant" shall have the meaning specified in Section
2.4.
"Principal Stockholder" shall mean Jupiter and, where the context
refers to the ownership by the Principal Stockholder of Common Stock, shall also
mean its Affiliated Transferees who own Common Stock.
"Prospective Seller" shall have the meaning specified in Section 2.4.
"Prospective Transferee" shall have the meaning specified in Section 6.
"Public Offering" means a public offering of Common Stock pursuant to
an effective registration statement under the Securities Act.
"Public Sale" means a Transfer of Common Stock pursuant to a Public
Offering or under Rule 144 (or any successor rule) under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, in the form of Exhibit C.
"Repurchase Price" shall mean, with respect to a share of Common Stock,
the Fair Market Value thereof; provided, that if at the time of any
determination of the Repurchase Price, the Company has not completed an Initial
Public Offering, then in determining the Repurchase Price for transactions
involving a Management Stockholder who owns Call Shares with a value in excess
of $500,000, if the Management Stockholder disagrees with the Board's
determination of Fair Market Value, such Fair Market Value shall be determined
by an independent appraiser
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selected jointly by the Company and such Management Stockholder, which appraiser
shall determine the fair market value per share of Common Stock (taking into
consideration the lack of liquidity and non-control nature of the Call Shares).
The Management Stockholder who disagrees with the Board's determination of Fair
Market Value will pay the cost of such appraisal unless it is determined by the
appraiser that the Board's determination was more than 10% lower than the
appraiser's determination, in which case the Company will pay such cost.
"Restricted Shares" means all shares of Common Stock other than (i)
shares that have been registered under a registration statement pursuant to the
Securities Act, (ii) shares with respect to which a sale has been made pursuant
to Rule 144 promulgated under the Securities Act (or any successor rule), (iii)
shares with respect to which a sale may be made pursuant to Rule 144(k)
promulgated under the Securities Act (or any successor rule), or (iv) shares
with respect to which the holder thereof shall have delivered to the Company an
opinion of counsel, in form and substance reasonably satisfactory to the
Company, to the effect that the Transfer of such shares may be effected without
registration under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders" shall have the meaning specified in the introductory
paragraph of this Agreement.
"Subsidiary," with respect to any Person, means any other Person of
which such Person owns or controls, directly or indirectly, more than 50% of the
outstanding voting shares or other voting interests or equity interests.
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"Substitute Purchase Offer" shall have the meaning specified in Section
2.4.
"Tag-Along Common Stock" shall have the meaning specified in Section
2.4.
"Tag-Along Notice" shall have the meaning specified in Section 2.4.
"Tag-Along Right" shall have the meaning specified in Section 2.4.
"Threshold Amount" shall mean the number of shares of Common Stock
which is equal to 20% of (i) the shares of Common Stock owned by the Principal
Stockholder on the date hereof, plus (to the extent not included in (i)) (ii)
any shares purchased by the Principal Stockholder after the date hereof pursuant
to Section 4.2 of the Agreement and Plan of Merger dated as of April 20, 1998 by
and among the Company and Jupiter Acquisition Corp.
"Transfer," with respect to any shares of Common Stock, means any
transfer, assignment, sale, gift, pledge, hypothecation or other disposition of
Common Stock or of all or part of the voting power (other than the granting of a
revocable proxy) associated with the Common Stock whatsoever, or any other
transfer of beneficial ownership of Common Stock, including, without limitation,
any Involuntary Transfer; and "Transferee" shall have a correlative meaning.
Section 2. Restrictions on Transfer.
2.1 Common Stock Subject To This Agreement. Unless otherwise provided
herein, all shares of Common Stock of the Company (including, without
limitation, any Option Shares or Call Shares) now owned or hereafter acquired by
any of the Stockholders or any Transferee thereof (including any Person who
acquires
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Common Stock by means of an Involuntary Transfer, but not including any Person
who acquires Common Stock pursuant to a Public Sale) shall be subject to the
terms of this Agreement.
2.2 General Restriction.
2.2.1 General. Each Stockholder agrees that he or it will not,
directly or indirectly, make any Transfer of any Common Stock, except in
compliance with the Securities Act. Each Management Stockholder further agrees
to the restrictions on Transfer set forth in Section 2.3. Each Stockholder
agrees (i) that any direct or indirect Transfer of Common Stock held by it will
be made only in compliance with Section 6 (Transferees Subject to Agreement), to
the extent applicable, and (ii) to be bound by the provisions of Section 2.4
(Tag-Along Right) with respect to its Common Stock. Any Transfer effected, or
purported or attempted to be effected, not in accordance with the terms and
conditions of this Agreement shall be void and of no effect. In connection with
any voided Transfer, the Company may hold and refuse to transfer any Common
Stock or certificate therefor tendered for transfer, in addition and without
prejudice to any and all other rights and remedies which may be available.
2.2.2 Involuntary Transfer. Any Person who acquires Common
Stock from a Stockholder by means of an Involuntary Transfer shall be deemed to
have become a party to this Agreement in the place and stead of the transferring
Stockholder and shall be bound by the terms hereof; provided, that prior to the
Company transferring such Common Stock on its books and records to such Person
and prior to the exercise by such Person of any rights hereunder, such Person
shall have delivered an appropriate document, in form and substance reasonably
satisfactory to the
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Company, confirming that such Person takes such shares subject to the terms and
conditions of this Agreement, and such Person thereupon shall be deemed to be a
Permitted Transferee of such Stockholder.
2.3 Transfers of Common Stock and Option Shares by Management
Stockholders.
2.3.1 Each Management Stockholder agrees that he will not,
directly or indirectly, Transfer any shares of Common Stock except, subject to
compliance with Section 6 (Transferees Subject to Agreement), (i) Transfers of
Common Stock pursuant to the procedures, and subject to the limitations, set
forth in Section 2.4 (Tag-Along Right), Section 2.5 (Drag-Along Right), Section
2.6 (Transfers Following Initial Public Offering and Other Transfers) or
transfers under the Registration Rights Agreement, or (ii) Transfers of Common
Stock to the Company or the Principal Stockholder pursuant to the provisions of
Section 3 (Call Options) or otherwise, or (iii) Transfers of Common Stock to any
Permitted Transferee of such Management Stockholder, or (iv) Transfers
consisting of pledges of Common Stock to the Company, or (v) Transfers of Common
Stock to any Person pursuant to an Involuntary Transfer or (vi) Transfers after
February 21, 2006 (which shall not require compliance with Section 6); provided
that, in the case of this clause (v), such Person shall have delivered an
appropriate document, in form and substance reasonably satisfactory to the
Company, confirming that such Person takes such shares subject to the terms and
conditions of this Agreement, and such Person thereupon shall be deemed to be a
Permitted Transferee of such Management Stockholder. Each Management Stockholder
further agrees that, notwithstanding the foregoing, he will
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not, directly or indirectly, Transfer any Option Shares or Call Shares during
the Option Share Restriction Period other than pursuant to Section 2.4
(Tag-Along Right), Section 2.5 (Drag-Along Right) or Section 2.6 (Transfers
Following Initial Public Offering and Other Transfers); thereafter, such Option
Shares and Call Shares will continue to be subject to the other provisions of
this Agreement.
2.4 Tag-Along Right. Other than in connection with the exercise of the
Drag-Along Right or a Call Option or pursuant to a Public Sale permitted here
under, in the event that any Stockholder (as used in this Section, a
"Prospective Seller") shall receive a bona fide offer to purchase shares of
Common Stock (a "Purchase Offer") from any Person (including, without
limitation, any offer by a Management Stockholder, but not including (a) an
offer by a Permitted Transferee of such Prospective Seller or (b) an offer by
the Principal Stockholder), the Prospective Seller shall either decline such
Purchase Offer or, if the Prospective Seller determines to accept such Purchase
Offer, then, prior to accepting any Purchase Offer, arrange for the proposed
purchaser to make, in lieu of the Purchase Offer, a substitute bona fide offer
to purchase the same number of shares of Common Stock that were the subject of
the Purchase Offer, and upon the same terms as the Purchase Offer, from the
Stockholders owning Common Stock as a group in the relative proportions and
otherwise as described in the second succeeding sentence (the "Substitute
Purchase Offer"). In the event a Substitute Purchase Offer is made, the
Prospective Seller shall give the other Stockholders written notice thereof (the
"Notice") specifying (i) the number of shares of Common Stock that is the
subject of such Substitute Purchase Offer, (ii) the terms (including the
proposed date of consummation thereof, which shall
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be not less than 30 days following the date of the Notice) of such Substitute
Purchase Offer, and (iii) the identity of the proposed purchaser. Upon receipt
of the Notice, each Stockholder (a "Potential Participant") shall have the right
(the "Tag-Along Right") to sell that number of shares of Common Stock equal to
the product of (a) the total number of shares of Common Stock proposed to be
purchased and (b) a fraction, the numerator of which shall be the number of
shares of Tag-Along Common Stock (as defined below) owned by such Potential
Participant and the denominator of which shall be the number of shares of
Tag-Along Common Stock owned by all Potential Participants (including the
Prospective Seller) electing to participate in such sale. For purposes of the
foregoing, "Tag-Along Common Stock" shall mean all shares of Common Stock,
including shares issuable pursuant to options which, at the time of the Notice,
are capable of being exercised in accordance with the terms of the Option Plan
or the related option agreement and are "in-the-money." The Tag-Along Right may
be exercised by a Potential Participant by delivery, not later than 15 days
after receipt of the Notice, of a written notice (the "Tag-Along Notice") to the
Prospective Seller, which shall state the number of shares of Common Stock that
such Potential Participant wishes to include in such sale to the purchaser. The
Prospective Seller, together with any electing Potential Participants, shall
participate in any purchase made by the purchaser specified in the Notice on the
terms set forth therein (or on terms no less favorable to the purchaser) and as
provided in the Tag-Along Notice during the 90-day period following the date of
the Notice. Any purchases by such purchaser following such 90-day period shall
require a new Notice. To the extent a Potential Participant does not participate
in such sale, the Prospective Seller and the other Potential
16
Participants may sell that number of shares of Common Stock (in addition to the
shares of Common Stock otherwise permitted to be sold by them hereunder) equal
to their proportionate share of the number of shares with respect to which such
Potential Participant had the opportunity to sell hereunder. All Transfers made
pursuant to this Section 2.4 shall be subject to the provisions of Section 6
(Transferees Subject to Agreement). The provisions of this Section 2.4 shall
terminate when both of the following conditions have been satisfied: (i) an
Initial Public Offering has occurred; and (ii) the Principal Stockholder no
longer owns Common Stock in excess of the Threshold Amount.
2.5 Drag-Along Right. If the Principal Stockholder proposes to make a
bona fide sale of its shares of Common Stock to a third party un-Affiliated with
the Principal Stockholder (which may include another Stockholder) in an amount
equal to at least 10% of the Fully Diluted Shares (which amount shall be
calculated based on the transaction in question or a series of transactions
related thereto), the Principal Stockholder shall have the right (the
"Drag-Along Right"), exercisable upon 15 days' prior written notice, to require
the other Stockholders to sell a corresponding percentage (as the percentage
being sold by the Principal Stockholder) of the number of shares of Common Stock
held by such other Stockholders to such third party upon terms no less favorable
to the other Stockholders than those that apply to the Principal Stockholder
with respect to such third party sale. For purposes of calculating such
corresponding percentage, there shall be included in such calculation (without
duplication) (i) shares of Common Stock, (ii) shares issuable pursuant to the
exercise of Management Options and Management Roll-over Options that are
exercisable in
17
accordance with the Option Plan or the related option agreement and are
in-the-money, even if such sale is during the Option Share Restriction Period,
and (iii) Call Shares. Each Stockholder hereby agrees to cooperate with the
Principal Stockholder and to take any and all action reasonably required in
connection with the consummation of such third party sale. Without limiting the
foregoing, at the closing of any sale under this Section 2.5, each Stockholder
shall deliver certificates representing the shares of Common Stock to be sold,
duly endorsed for transfer and accompanied by all requisite stock transfer
taxes, and each Stockholder shall represent and warrant that it is the
beneficial owner of such shares free and clear of any Encumbrances, with full
authority and power to transfer such shares. All Transfers made pursuant to this
Section 2.5 shall be subject to the provisions of Section 6 (Transferees Subject
to Agreement) unless the Principal Stockholder otherwise determines. The
provisions of this Section 2.5 shall terminate when both of the following
conditions have been satisfied: (i) an Initial Public Offering has occurred; and
(ii) the Principal Stockholder no longer owns Common Stock in excess of the
Threshold Amount.
2.6 Transfers Following Initial Public Offering and Other Transfers.
2.6.1 From and after the date of the Initial Public Offering,
and provided that at the time of the Transfer by a Management Stockholder
referred to below the Principal Stockholder continues to own Common Stock in
excess of the Threshold Amount, a Management Stockholder and his Permitted
Transferees may Transfer shares of Common Stock held by them (other than, until
the fifth anniversary of the date hereof, any Call Shares) (x) pursuant to the
exercise of their rights under the Registration Rights Agreement, (y) pursuant
to a sale under Rule 144 of the
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Securities Act which is subject to the volume limitations set forth in
subparagraph (e)(1) of such Rule; provided, that a Management Stockholder and
his Permitted Transferees as a group may only Transfer their Common Stock under
clauses (x) and (y) in an aggregate amount equal to the product of (i)(A) prior
to the 50% Disposition Date, one-half of, and (B) after the 50% Disposition
Date, 100% of, the total number of shares of Public Sale Stock (as defined
below) held by such Management Stockholder as of the date hereof (or, if such
Management Stockholder and his Permitted Transferees as a group have acquired
additional Common Stock after the date hereof in a manner that was not in
violation of this Agreement, such greater number) multiplied by (ii) a fraction,
the numerator of which shall be the aggregate number of shares of Common Stock
that have been Transferred by the Principal Stockholder prior to the date of the
proposed Transfer by such Management Stockholder, and the denominator of which
shall be the total number of shares of Common Stock held by the Principal
Stockholder as of the date hereof (or, if the Principal Stockholder has acquired
additional Common Stock after the date hereof in a manner that was not in
violation of this Agreement, such greater number), or (z) pursuant to an
exemption from the registration requirements of the Securities Act, but only if
at the time of such Transfer by such Management Stockholder the Principal
Stockholder is also Transferring Common Stock; provided that a Management
Stockholder and his Permitted Transferees as a group may only Transfer their
Common Stock under this clause (z) in an aggregate amount equal to the product
of (i)(A) prior to the 50% Disposition Date, one-half of, and (B) after the 50%
Disposition Date, 100% of, the total number of shares of Public Sale Stock held
by such Management Stockholder as
19
of the date hereof (or, if such Management Stockholder and his Permitted
Transferees as a group have acquired additional Common Stock after the date
hereof in a manner that was not in violation of this Agreement, such greater
number) multiplied by (ii) a fraction, the numerator of which shall be the
aggregate number of shares of Common Stock then being Transferred by the
Principal Stockholder, and the denominator of which shall be the total number of
shares of Common Stock held by the Principal Stockholder as of the date hereof
(or, if the Principal Stockholder has acquired additional Common Stock after the
date hereof in a manner that was not in violation of this Agreement, such
greater number). For purposes of the foregoing, "Public Sale Stock" shall mean
all shares of Common Stock, plus all shares of Common Stock issuable pursuant to
Management Options and Management Roll-over Options, which at the time of such
proposed Transfer, are capable of being exercised in accordance with the terms
of the Option Plan or the related option agreement and are "in-the-money," but
until the fifth anniversary of the date hereof, Public Sale Stock shall not
include any Management Roll-over Options that are subject to a Call Option
pursuant to Section 3.1.3.
2.6.2 From and after the date of the Initial Public Offering,
and provided that at the time of the Transfer referred to below the Principal
Stockholder does not continue to own Common Stock in excess of the Threshold
Amount, a Management Stockholder and his Permitted Transferees may Transfer
shares of Common Stock held by them (other than, until the fifth anniversary of
the date hereof, any Call Shares) pursuant to the exercise of their rights under
the Registration Rights
20
Agreement or pursuant to an applicable exemption from the registration
requirements of the Securities Act.
2.6.3 At any time after the Principal Stockholder does not
continue to own Common Stock in excess of the Threshold Amount, and there has
not occurred an Initial Public Offering, a Management Stockholder and his
Permitted Transferees may transfer shares of Common Stock held by them pursuant
to an applicable exemption from the registration requirements of the Securities
Act.
2.6.4 Any shares of Common Stock Transferred pursuant to a
Public Sale or pursuant to Section 2.6.3 shall no longer be subject to the
provisions of this Agreement.
Section 3. Call Options.
3.1 Call Options of the Company and the Principal Stockholder.
3.1.1 Termination for Cause. Subject to Section 3.3
(Termination of Call Options), if the employment by the Company of any
Management Stockholder shall be terminated by the Company or any of its
subsidiaries for Cause, then (A) all Management Options held by the applicable
Management Stockholder and his Permitted Transferees shall be cancelled without
consideration and (B) the Company and the Principal Stockholder shall have the
right, but not the obligation, to purchase (the "Call for Cause") from the
applicable Management Stockholder and his Permitted Transferees, and if the
Company and/or the Principal Stockholder exercises such right, such Management
Stockholder and his Permitted Transferees shall have the obligation to sell to
the Company and/or the Principal Stockholder, all or any portion of the Call
Shares held by such Management Stockholder and his Permitted Transferees (it
being
21
agreed that the number of shares subject to the Call for Cause shall be the
maximum number of Call Shares that may be held by such Management Stockholder
and his Permitted Transferees during the 180-day period during which such Call
for Cause may be exercised), at a price per share (but not less than zero) equal
to the lower of (i) $26.50 per share (less, in the case of options, the exercise
price thereof) and (ii) the Repurchase Price (less, in the case of options, the
exercise price thereof). Notwithstanding the foregoing, following the fifth
anniversary of the date hereof, the Company's call rights under this Section
3.1.1 shall apply only to Call Shares representing Management Options or Option
Shares issued pursuant to the exercise of Management Options and shall not apply
to Call Shares representing Management Rollover Options or Option Shares issued
pursuant to the exercise of Management Rollover Options. For purposes of this
Section 3.1.1, a termination for Cause shall be deemed to have occurred with
respect to a Management Stockholder if such Management Stockholder resigns from
his employment with the Company after committing any act which, with notice or
lapse of time or both, would constitute an event of Cause under the definition
of "Cause."
3.1.2 Termination by Resignation. Subject to Section 3.3
(Termination of Call Options), if prior to the fifth anniversary of the date
hereof any Management Stockholder shall cease to be employed by the Company or
any of its subsidiaries as a result of his resignation (other than for Good
Reason and other than a resignation which occurs after committing any act which,
with notice or lapse of time or both, would constitute an event of Cause under
the definition of such term), then the Company and the Principal Stockholder
shall have the right, but not the obligation, to
22
purchase (the "Call for Resignation") from the applicable Management Stockholder
and his Permitted Transferees, and if the Company and/or the Principal
Stockholder exercises such right, such Management Stockholder and his Permitted
Transferees shall have the obligation to sell to the Company and/or the
Principal Stockholder, all or any portion of the Call Shares held by such
Management Stockholder and his Permitted Transferees (it being agreed that the
number of shares referred to above shall be the maximum number of shares of Call
Shares that may be held by such Management Stockholder and his Permitted
Transferees during the 180-day period during which such Call for Resignation may
be exercised) multiplied by the percentage specified on Exhibit B opposite the
relevant period in which such resignation occurs, at a price per share (but not
less than zero) equal to the lower of (i) $26.50 per share (less, in the case of
options, the exercise price thereof) and (ii) the Repurchase Price (less, in the
case of options, the exercise price thereof).
3.1.3 Termination Without Cause. Subject to Section 3.3
(Termination of Call Options), if prior to the fifth anniversary of the date
hereof any Management Stockholder shall cease to be employed by the Company or
any of its subsidiaries for any reason whatsoever, except due to death,
Disability, termination for Cause or resignation (other than resignation for
Good Reason and resignation deemed to be a termination for Cause under Section
3.1.1), the Company and the Principal Shareholder shall have the right, but not
the obligation, to purchase (the "Call Without Cause") from the applicable
Management Stockholder and his Permitted Transferees, and if the Company and/or
the Principal Stockholder exercises such right, such Management Stockholder and
his Permitted Transferees shall have the obligation to sell
23
to the Company and/or the Principal Stockholder, all or any portion of the Call
Shares held by such Management Stockholder and his Permitted Transferees (it
being agreed that the number of shares referred to above shall be the maximum
number of Call Shares that may be held by such Management Stockholder and his
Permitted Transferees during the 180-day period during which such Call Without
Cause may be exercised) multiplied by the percentage specified on Exhibit B
opposite the relevant period in which such cessation occurs, at a price per
share equal to the Repurchase Price (less, in the case of options, the exercise
price thereof).
3.1.4 Management Stockholder Breach of Employment Agreement.
Subject to Section 3.3 (Termination of Call Options), if any Management
Stockholder materially breaches any provision of Section 6 (Noncompetition,
Secrecy and Inventions) of his Employment Agreement (or any successor provision
of any successor agreement) and, if such breach is susceptible of being cured as
determined by the Board in good faith, such breach is not cured within ten
business days after receiving written notice (stating with specificity the
nature of the breach) from the Board, then (A) all Management Options held by
the applicable Management Stockholder and his Permitted Transferees shall be
cancelled without consideration and (B) the Company, among the other rights and
remedies set forth in the Employment Agreement, and the Principal Stockholder
shall have the right, but not the obligation, to purchase (the "Call for
Breach") from the applicable Management Stockholder and his Permitted
Transferees, and if the Company and/or the Principal Stockholder exercises such
right, the Management Stockholder and his Permitted Transferees shall have the
obligation to sell to the Company and/or the Principal Stockholder, all or any
24
portion of the Call Shares held by such Management Stockholder and his Permitted
Transferees (it being agreed that the number of shares subject to the Call for
Breach shall be the maximum number of Call Shares held by such Management
Stockholder and his Permitted Transferees during the 180-day period during which
such Call for Breach may be exercised) at a price per share (but not less than
zero) equal to the lower of (i) $26.50 per share (less, in the case of options,
the exercise price thereof) and (ii) the Repurchase Price (less, in the case of
options, the exercise price thereof). Notwithstanding the foregoing, following
the fifth anniversary of the date hereof, the Company's call rights under this
Section 3.1.4 shall apply only to Call Shares representing Management Options or
Option Shares issued pursuant to the exercise of Management Options and shall
not apply to Call Shares representing Management Rollover Options or Option
Shares issued pursuant to the exercise of Management Rollover Options.
3.1.5 Procedure. The Company may exercise its rights pursuant
to this Section 3.1 by providing written notice to the relevant Management
Stockholder and the Principal Stockholder not later than 90 days after written
notice (the "Company Notice") from the Company to the Management Stockholder
(with a copy to the Principal Stockholder) of the event triggering such rights,
indicating the amount of Call Shares subject to the relevant Call Option. Any
portion of such Call Option not exercised within such 90-day period shall expire
with respect to the Company and be
25
void and of no further force and effect. Provided that the Company has not
exercised its rights in full with respect to such relevant Call Option under
this Section 3.1, the Principal Stockholder may exercise the rights of the
Company (with respect to that portion of the Call Option not exercised by the
Company) under this Section 3.1 on its own behalf by providing written notice to
the relevant Management Stockholder not later than 180 days after the date of
the Company Notice. Any portion of the relevant Call Option not exercised within
such 180-day period shall expire with respect to the Principal Stockholder and
be void and of no further force and effect.
3.2 Closing. The closing of any purchase by the Company or the
Principal Stockholder under this Section 3 shall be held at the principal office
of the Company on the 45th day after the date on which a notice of exercise of a
Call Option is given hereunder or at such other time and place as the parties to
the transaction may agree upon. At the closing of any purchase under this
Section 3, the applicable Stockholder and his Permitted Transferees shall
deliver certificates representing the Call Shares to be sold, duly endorsed for
transfer and accompanied by all requisite stock transfer taxes, and the
Stockholder and his Permitted Transferees shall represent and warrant that each
is the beneficial owner of such shares free and clear of any Encumbrances, with
full authority and power to transfer such shares. Payment for any Call Shares
shall be made by the Company in cash or, in the event that the Company's Board
determines in good faith that it would not be advisable to make such payment in
cash because the Company is constrained by financing or other arrangements, by a
subordinated note (subordinated to all indebtedness of the Company for money
borrowed) with interest at the prime rate of NationsBank, N.A., and a maturity
of two
26
years. At such closing, the parties shall execute and/or deliver such additional
documents as are otherwise reasonably necessary or appropriate to consummate the
transfers.
3.3 Termination of Call Options. Upon the occurrence of a Change in
Control, any theretofore unexercised Call Options shall terminate and be of no
further force or effect. Any shares of Common Stock Transferred in accordance
with the provisions of Section 2.4 (Tag-Along Right), Section 2.5 (Drag-Along
Right) or Section 2.6 (Transfers Following Initial Public Offering) (other than
to a Person who is a Management Stockholder on the date hereof or to any
Permitted Transferee of such Management Stockholder) shall no longer be subject
to the Call Options.
Section 4. Registration Rights. The Company hereby grants to the
Principal Stockholder, the Management Stockholders and each of their Permitted
Transferees, registration rights with respect to the Common Stock on the terms
and subject to the conditions set forth in the Registration Rights Agreement.
Section 5. Changes in Common Stock; Option Plan; Other.
5.1 Changes in Common Stock. If there is any change in the Common Stock
by way of stock split, reverse stock split, stock dividend, reclassifica tion,
merger, consolidation, reorganization, recapitalization or any similar means,
then all appropriate adjustments to the provisions hereof shall be made so that
the rights and obligations of the parties hereto under this Agreement shall
continue with respect to the Common Stock as so changed.
5.2 Registration of Option Shares. At all times during which the
Company is subject to the requirements to file reports pursuant to Section 13 or
15(d)
27
of the Exchange Act, the Company shall cause all Option Shares, at any time when
the options with respect thereto are exercisable, to be registered under the
Securities Act on Form S-8 (or any successor form). Nothing in this Section 5.2
will provide any Management Stockholder the right to make any transfer unless
such transfer is otherwise expressly permitted by this Agreement.
Section 6. Transferees Subject to Agreement. Each Stockholder agrees
that it will not make any Transfer (including, without limitation, to a
Permitted Transferee but excluding a Transfer in a Public Sale) unless, prior to
the consummation of any such Transfer, the Person (other than any then current
Stockholder) to whom such Transfer will be made (a "Prospective Transferee")
executes and delivers to the Company an agreement, in form and substance
reasonably satisfactory to the Company, whereby such Prospective Transferee
confirms that it shall be deemed to be a Stockholder for the purposes of, and
shall be subject to, this Agreement.
Section 7. Legends.
7.1 Each certificate evidencing shares of Common Stock shall bear a
legend in substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF
TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER
UNLESS SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT. THE
28
SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, ALL AS SET FORTH IN A STOCKHOLDERS AGREEMENT,
A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
ISSUER."
7.2 In the event that any shares of Common Stock shall cease to be
Restricted Shares, the Company shall, upon the written request of the holder
thereof, promptly issue to such holder a new certificate evidencing such shares
without the first two sentences of the legend required by Section 7.1. In the
event any shares of Common Stock shall cease to be subject to the restrictions
on transfer and repurchase set forth in this Agreement, the Company shall, upon
the written request of the holder thereof, promptly issue to such holder a new
certificate evidencing such shares without the third sentence of the legend
required by Section 7.1.
Section 8. Miscellaneous.
8.1 Amendment. This Agreement cannot be amended orally, but only by an
agreement in writing signed by the Company, the Principal Stockholder and the
holders of at least 50% of the shares of Common Stock held by all of the
Management Stockholders and their Permitted Transferees as a group, except that
the Company may amend Exhibit A of this Agreement to reflect changes made in
accordance with this Agreement.
8.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE,
AND TO BE PERFORMED ENTIRELY, IN NEW YORK.
29
8.3 Execution in Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
8.4 Notices. All communications provided for herein shall be in writing
and,
(i) if addressed to a Stockholder, shall be delivered or
mailed or telecopied to such Stockholder at its address specified on Exhibit A
(or an annex thereto, if such Stockholder shall have become a party hereto
pursuant to Section 6), or to such other address as such Stockholder shall have
notified the Company in writing, or
(ii) if addressed to the Company, shall be delivered or mailed
or telecopied to it at PCA International, Inc., 000 Xxxxxxxx-Xxxx Xxxx Xxxx,
Xxxxxxxx, XX 00000, Attention: Xxxx Xxxxxx, Fax (000) 000-0000, with a copy to
the Principal Stockholder, c/o Jupiter Partners II L.P., 00 Xxxxxxxxxxx Xxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxx, Fax: (212)
000-0000, or to such other address as the Company or the Principal Stockholder,
as the case may be, shall have notified all Stockholders in writing. Except as
otherwise expressly provided herein, any communication shall be deemed to have
been given when delivered (if delivered by hand or by reputable overnight
courier service), in the case of facsimile transmission, when telecopied with
confirmation of transmission, or if mailed, shall be deemed to have been given
three days after having been so mailed.
8.5 Entire Agreement; Headings; Gender. This Agreement (including the
Exhibits hereto) and the Agreements referred to herein embody the entire agree-
30
ment and understanding among the parties and supersede all prior agreements and
understandings relating to the subject matter hereof. The headings in and date
of this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof. The term "its" is used in this Agreement
for convenience only and shall be deemed to include, where applicable, "her or
his," and vice versa. Similarly, the pronoun "it" when referring to a
Stockholder shall be deemed to include, where applicable, "her or she" or "him
or he," and vice versa.
8.6 Copy of Agreement with Company. A counterpart of this Agreement
shall be filed with the Company at its principal office.
8.7 Specific Performance. The parties recognize that the obligations
imposed on them in this Agreement are special, unique and of extraordinary
character, and that in the event of breach by any party, damages will be an
insufficient remedy; consequently, it is agreed that the parties hereto may have
specific performance (in addition to damages) as a remedy for the enforcement
hereof, without proving damages. No party shall raise any argument as to the
sufficiency of money damages.
8.8 Assignment. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns; provided,
however, that this Agreement may not be assigned by the Company or any of the
Management Stockholders without the prior written consent of the Company, the
Principal Stockholder and the holders of at least 50% of the shares of Common
Stock held by all of the Management Stockholders and their Permitted Transferees
as a group, except that (i) the Company may assign its rights herein to any
successor to all or substantially
31
all of its assets (by merger or otherwise); (ii) subject to Section 6
(Transferees Subject to Agreement), any Management Stockholder may assign its
rights under this Agreement to any Permitted Transferee of its shares of Common
Stock; and (iii) each Stockholder's rights under the Registration Rights
Agreement shall inure to the benefit of any holder of Registrable Securities (as
defined in the Registration Rights Agreement). Any purported assignment made in
violation of this Agreement shall be void and of no force and effect.
8.9 Third Party Beneficiary. Nothing in this Agreement, express or
implied, is intended or shall confer upon anyone other than the parties hereto
(and their respective permitted successors and assigns) any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunder signed their
names or have caused this Agreement to be duly executed by their officers
thereunder duly authorized as of the date first above written.
PCA INTERNATIONAL, INC.
By:________________________________
Authorized Officer
STOCKHOLDERS:
-----------------------------------
Name:
-----------------------------------
Name:
32
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
33
-----------------------------------
Name:
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Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
EXHIBIT B
REPURCHASE PERCENTAGES
Anniversary from
Date of Agreement Repurchase Percentage
----------------- ---------------------
On or before 1st Anniversary 100%
Between 1st and on or before
2nd Anniversary 80%
Between 2nd and on or
before 3rd Anniversary 60%
Between 3rd and on or before
4th Anniversary 40%
Between 4th and on or before
5th Anniversary 20%
On or After 5th Anniversary 0%
EXHIBIT C
================================================================================
REGISTRATION RIGHTS AGREEMENT
by and among
PCA INTERNATIONAL, INC.
and
CERTAIN OF THE HOLDERS OF ITS COMMON STOCK
Dated as of August , 1998
================================================================================
TABLE OF CONTENTS
-----------------
PAGE
----
1. Demand Registrations..................................................1
2. Piggy-back Registration...............................................6
3. Registration Procedures...............................................8
4. Preparation; Reasonable Investigation................................14
5. Rule 144.............................................................15
6. Hold-Back............................................................15
7. Indemnification......................................................16
8. Participation in Underwritten Registrations..........................18
9. Registration Rights to Others........................................19
10. Definitions..........................................................19
REGISTRATION RIGHTS AGREEMENT, dated as of August ___, 1998, by and
among PCA INTERNATIONAL, INC., a Delaware corporation (the "Company"), and each
of the other parties signatory hereto who own Common Stock of the Company and
are parties to that certain Stockholders Agreement, dated as of the date hereof,
among the Company and certain of the holders of the Common Stock of the Company
(the "Stockholders Agreement"). Capitalized terms used herein and not otherwise
defined shall have the meanings given them in Section 10.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Request. Jupiter shall have the right from time to time to
make up to six written requests that the Company, subject to the provisions of
Sections 1(e) and (f), effect the registration under the 1933 Act of all or any
part of its Registrable Securities. Registrations requested pursuant to this
Section 1(a) are referred to herein as "Demand Registrations." Each request for
a Demand Registration shall specify the number of Registrable Securities
requested to be registered. Within 10 days after receipt of any such request,
the Company shall give written notice of the Demand Registration to all other
holders of Registrable Securities (such holders, together with Jupiter, are
referred to in this Section 1 as the "Selling Holders") and shall, subject to
Section 1(e), include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within 15 days after the giving of the Company's notice; provided, that the
Company shall not be required to include in such registration any Registrable
Securities held by a Management Stockholder or any of his Permitted
2
Transferees in excess of the Proportional Amount (as defined below). The term
"Proportional Amount," as of any date, shall mean an aggregate number of shares
of Common Stock equal to the product of (i) (A) prior to the 50% Disposition
Date, one-half of, and (B) after the 50% Disposition Date, 100% of, the total
number of shares of Registrable Securities held by such Management Stockholder
and his Permitted Transferees as of the date hereof (or, if such Management
Stockholder and his Permitted Transferees as a group have acquired additional
Registrable Securities after the date hereof in a manner that was not in
violation of the Stockholders Agreement, such greater number) multiplied by (ii)
a fraction, the numerator of which shall be the aggregate number of shares of
Registrable Securities requested to be included in such registration by Jupiter
and the denominator of which shall be the total number of shares of Registrable
Securities held by Jupiter as of the date hereof (or, if Jupiter has acquired
additional Registrable Securities after the date hereof in a manner that was not
in violation of the Stockholders Agreement, such greater number). For purposes
of the foregoing definition, there shall be included in the number of shares of
Registrable Securities all shares of Common Stock, including shares issued
pursuant to options that, as of the date of determination, are capable of being
exercised in accordance with the terms of the Option Plan or the related option
agreement and are "in-the-money," but, until the fifth anniversary of the date
hereof, shall not include any Management Roll-over Options that are subject to a
Call Option pursuant to Section 3.1.3 of the Stockholders Agreement.
3
(b) Registration Statement Form. Registrations under this
Section 1 shall be on such appropriate registration form of the Commission as
shall be reasonably selected by the Company.
(c) Effective Registration Statement. A registration requested
pursuant to this Section 1 shall not be deemed to have been effected (i) unless
a registration statement with respect thereto has become effective and remained
effective in compliance with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities covered by such registration statement
until such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the Selling Holders set
forth in such registration statement (unless the failure to so dispose of such
Registrable Securities shall be caused solely by reason of a failure on the part
of the Selling Holders); provided that such period need not exceed 180 days, or
(ii) if after it has become effective, such registration is interfered with by
any stop order, injunction or other order or requirement of the Commission or
other governmental agency or court for any reason not primarily attributable to
the Selling Holders and has not thereafter again become effective.
(d) Selection of Underwriters. If the Company or Jupiter
desires to engage an underwriter or underwriters with respect to an offering of
the Registrable Securities so to be registered, such underwriter shall be
selected by Jupiter and shall be reasonably acceptable to the Company.
(e) Priority in Demand Registration. If the managing
underwriter of any underwritten offering shall advise the Company (and the
Company
4
shall so advise each Selling Holder of such advice) that, in its opinion, the
securities requested to be included in such registration exceeds the number
which can successfully be sold in such offering within a price range acceptable
to Jupiter, then the Company will include in such registration, to the extent of
the Registrable Securities which the Company is so advised can be sold in such
offering, first, all securities proposed to be registered by Jupiter and,
second, to the extent additional shares of Common Stock may be included in such
offering, all other shares proposed to be registered, pro rata among the other
Selling Holders of Registrable Securities participating in such registration
(relative to the number of Registrable Securities originally requested to be
registered by such Selling Holders) (subject, in the case of any Management
Stockholder or his Permitted Transferees, to the Proportional Amount
limitation); provided that if the number of Registrable Securities that such
managing underwriter advises can be sold in such offering is less than 75% of
all the Registrable Securities that Jupiter had requested be included, Jupiter
may withdraw its written request made pursuant to Section 1(a) (Demand
Registration) and such written request will not be considered a request for
registration for the purposes of Section 1(a).
(f) Limitations on Demand Registrations. Notwithstanding
anything in this Section 1 to the contrary, (i) in no event will the Company be
required to effect more than six registrations pursuant to this Section 1 upon
the request of Jupiter and (ii) the Company shall not be required to effect more
than one Demand Registration in any six-month period or within 90 days after a
previous offering of the Common Stock registered under the 1933 Act.
5
(g) Company Delay. Notwithstanding anything herein to the
contrary, if, after Jupiter has given a written request under Section 1(a)
(Demand Registration), and prior to the effective date of the registration
statement filed in connection with such registration, the Board of Directors of
the Company shall deter mine in its good faith judgment that the filing of such
registration statement would be undesirable and would interfere with any
material financing, investment, acquisition or merger transaction then under
consideration or would reasonably in the judgment of the Board of Directors of
the Company adversely affect the interests of the Company and its stockholders,
the Company may decide to delay the registration of such Registrable Securities,
and if the Board of Directors of the Company makes such determination, the
Company shall give written notice of such determination to each Selling Holder.
Such delay shall be for the period the Company determines on the basis provided
above in good faith is necessary or desirable, but in no event greater than six
months. The Company shall notify Jupiter of the expiration of the period of
delay. Following such delay, the Company shall promptly cause the Registrable
Securities to be registered unless, within 15 days of receipt of notice from the
Company, Jupiter withdraws its written request made pursuant to Section 1
(Demand Registration), in which case, such written request will not be
considered a request for registration for the purposes of Section 1 (Demand
Registration) or 2 (Piggy-back Registration).
(h) Expenses. The Company will pay all Registration Expenses
(excluding any underwriting discounts or commissions with respect to the
6
Registrable Securities) in connection with any registration requested pursuant
to this Section 1.
2. Piggy-back Registration.
(a) Right to Include Registrable Securities. If the Company
proposes to register any of its Common Stock under the 1933 Act by registration
on any form other than Forms S-4 or S-8 (or any successor form) for sale for its
own account, it will each such time give prompt written notice to all holders of
Registrable Securities of its intention to do so and of such holders' rights
under this Section 2 prior to the proposed registration. Upon the written
request of any such holder (a "Requesting Holder") made as promptly as
practicable and in any event within 15 days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such Requesting Holder), the Company will file a registration statement
with respect to, and use all reasonable efforts to make effective at the
earliest possible date, the registration under the 1933 Act, subject to Section
2(b), of all Registrable Securities which the Company has been so requested to
register (provided that the Company shall not be required to include in such
registration any Registrable Securities held by any Management Stockholder or
his Permitted Transferees in excess of the Proportional Amount) by the
Requesting Holders thereof (each, a "Piggy-back Registration"); provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice
7
of such determination to each Requesting Holder of Registrable Securities and
(i) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from any obligation of the Company to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
any holder or holders of Registrable Securities entitled to cause such
registration to be effected as a registration under Section 1 (Demand
Registration), and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities for the same
period as the delay in registering such other securities. No registration
effected under this Section 2 shall relieve the Company of its obligation to
effect any Demand Registration under Section 1.
(b) Priority in Piggy-back Registrations. If the managing
underwriter of any underwritten offering shall inform the Company that the
Registrable Securities requested to be included in such registration exceeds the
number which can successfully be sold in such offering within a price range
acceptable to the Company, and the Company has so advised the Requesting Holders
in writing, then the Company will include in such registration, to the extent of
the Registrable Securities and other shares of Common Stock which the Company is
so advised can be sold in such offering, first, all securities proposed to be
registered by the Company for its own account, and second, to the extent
additional shares of Common Stock may be registered in such offering, all of the
Registrable Securities requested to be registered, pro rata (subject, in the
case of any Management Stockholder or his Permitted Transferees, to the
Proportional Amount limitation). In
8
connection with any registration as to which this Section 2(b) applies, the
Requesting Holders shall have the right, upon written notice to the Company
within 10 days of receipt of notice from the Company, to withdraw from such
registration the Registrable Securities requested to be registered by such
Requesting Holders.
(c) Expenses. The Company will pay all Registration Expenses
(excluding any underwriting discounts or commissions with respect to the
Registrable Securities) in connection with any registration effected pursuant to
this Section 2.
3. Registration Procedures. If and whenever the Company is required to
use its reasonable efforts to make effective the registration of any Registrable
Securities under the 1933 Act as provided in Sections 1 (Demand Registration)
and 2 (Piggy-back Registration), the Company will, as expeditiously as possible:
(a) prepare and (within 90 days after the date a request for
registration is given to the Company but in any event as soon thereafter as
practicable) file with the Commission the requisite registration statement to
effect such registration and thereafter use all reasonable efforts to cause such
registration statement to become effective;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the 1933 Act and the rules and regulations of
the Commission thereunder with respect to the disposition of all Registrable
Securities
9
covered by such registration statement, and furnish to each seller of
Registrable Securities, prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus;
(c) furnish to each seller of Registrable Securities covered
by such registration statement, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the 1933 Act, and in each case, each amendment or supplement thereto, in
conformity with the requirements of the 1933 Act, such documents, if any,
incorporated by reference in such registration statement or prospectus, and such
other documents, as such seller may reasonably request;
(d) use all reasonable efforts (i) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such states of the
United States of America where an exemption is not available and as the sellers
of Registrable Securities covered by such registration statement shall
reasonably request, (ii) to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and (iii) to take
any other action which may be reasonably necessary or advisable to enable such
sellers to consummate the disposition in such jurisdictions of the securities to
be sold by such sellers, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
10
Section 3(d) be obligated to be so qualified or to consent to general service of
process in any such jurisdiction or to subject itself to taxation in such
jurisdiction;
(e) use all reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or authorities as
may be necessary in the opinion of counsel to the Company or counsel to the
seller or sellers of Registrable Securities to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities;
(f) furnish at the effective date of such registration
statement to each seller of Registrable Securities and each such seller's
underwriters, if any, a signed counterpart of an opinion of counsel for the
Company, addressed to such seller and underwriters, if any, dated the effective
date of such registration statement and, if applicable, the date of the closing
under the underwriting agreement, covering sub stantially the same matters with
respect to such registration statement (and the pros pectus included therein) as
are customarily covered in opinions of issuer's counsel delivered to the
underwriters in underwritten public offerings of securities and such other legal
matters as the underwriters may reasonably request;
(g) promptly notify each seller of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make
11
the statements therein not misleading, in the light of the circumstances under
which they were made, and promptly prepare and, at the request of any such
seller, furnish to it a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
(h) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than 18
months, beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 promulgated thereunder,
and promptly furnish to each such seller of Regis trable Securities a copy of
any amendment or supplement to such registration state ment or prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration;
(j) use all reasonable efforts to list all Registrable
Securities covered by such registration statement on any national securities
exchange on which
12
Registrable Securities of the same class covered by such registration statement
are then listed (or, if other shares of Registrable Securities are so qualified,
qualify them for inclusion in the National Association of Securities Dealers
Automated Quotations National Market System, as the case may be);
(k) enter into such customary agreements (including an
underwriting agreement in customary form, including customary provisions
concerning indemnification of the underwriters by the Company) and take such
other actions as the sellers of Registrable Securities and the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
(l) obtain a "cold comfort" letter or letters from the
Company's independent public accountants in customary form and covering matters
of the type customarily covered by "cold comfort" letters as the underwriters
may reasonably request;
(m) notify each seller of Registrable Securities and the
managing underwriter or agent, immediately, and confirm the notice in writing
(i) when the registration statement, or any post-effective amendment to the
registration statement, shall have become effective, or any supplement to the
prospectus or any amendment to the prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request of the
Commission to amend the registra tion statement or amend or supplement the
prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
13
Registrable Securities for sale in any jurisdiction, or of the institution or
threatening of any proceedings for any such purposes;
(n) use all reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement at the earliest
possible time;
(o) cooperate with the sellers of Registrable Securities and
the managing underwriter or agent, if any, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends) representing
Registrable Securities to be sold, and enable such Registrable Securities to be
in such denomina tions and registered in such names as such sellers or the
managing underwriter or agent, if any, may reasonably request;
(p) cause its subsidiaries and affiliates to take all action
necessary or advisable to effect the registration of the Registrable Securities
contemplated hereby, including preparing and filing any required financial
informa tion;
(q) make its officers and employees available to participate
in presentations to potential purchasers of Registrable Securities; and
(r) use all reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable Securities
contemplated hereby.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
14
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any written notice from the Company
of the happening of any event of the kind described in Section 3(g) (Company
Delay), such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such holder's possession
of the prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
4. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the 1933 Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, the underwriters, if
any, and their respective counsel and accountants, the timely opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its financial
statements as shall be reasonably neces sary or advisable, in the opinion of
each of such holders and such underwriters'
15
respective counsel, to conduct appropriate due diligence as contemplated by the
1933 Act.
5. Rule 144. So long as the Common Stock shall be registered pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Company will file the reports required to be
filed by it under the Exchange Act and will take such further action as Jupiter
or the Management Stockholders, as the case may be, may reasonably request, all
to the extent required from time to time to enable Jupiter and the Management
Stockholders to sell Registrable Securities (to the extent permitted by the
Stockholders Agreement) without registration under the 1933 Act under the
exemptions provided by Rule 144, as such rule may be amended from time to time
("Rule 144"), or any similar rule or regulation hereafter adopted by the
Commission. Upon the request of Jupiter or any Management Stockholder, the
Company will deliver to Jupiter or such Management Stockholder, as the case may
be, a written statement as to whether it has complied with such requirements
and, if it has not so complied, stating that it will promptly do so.
6. Hold-Back. Each of the Company and each Stockholder holding
Registrable Securities, whether or not included in a registration statement
hereunder, agrees not to effect any public sale or distribution of shares of
Common Stock during the period specified by the managing underwriter or
underwriters of the underwritten offer being made pursuant to such registration
statement (which period shall not exceed seven days prior to and 180 days
following the effective date of such registra-
16
tion statement), except as part of such registration, if and to the extent
reasonably requested by such managing underwriter or underwriters.
7. Indemnification.
(a) The Company agrees to indemnify, to the fullest extent
permitted by law, each holder of Registrable Securities, its partners, officers
and directors, agents and each person who controls such holder (within the
meaning of the 0000 Xxx) against all losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each person who controls
such underwriters (within the meaning of the 0000 Xxx) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder shall
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and,
17
to the extent permitted by law, shall indemnify the Company, its directors,
officers and agents and each person who controls the Company (within the meaning
of the 0000 Xxx) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder; provided, that the obligation to indemnify shall be individual to
each holder and shall be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
(c) Any person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemni fied party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not
18
entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel (and such local
counsel as may be necessary) for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any partner, officer, director or
controlling person of such indemnified party and shall survive the transfer of
securities. The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's indemnification is unavailable for any reason.
8. Participation in Underwritten Registrations. Notwithstanding the
provisions of Sections 1 (Demand Registration) and 2 (Piggy-back Registration),
no person may participate in any registration hereunder which is underwritten
unless such person (i) agrees to sell such person's securities on the basis
provided in any under writing arrangements approved by the person or persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements;
provided that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than
19
representations and warranties regarding such holder and such holder's intended
method of distribution.
9. Registration Rights to Others. If the Company shall at any time
after the date hereof provide to any holder of any securities of the Company
rights with respect to the registration of such securities under the 1933 Act,
such rights shall not be in conflict with the rights provided to the holders of
Registrable Securities in this Agreement.
10. Definitions. As used in this Agreement, unless the context
otherwise requires, the following terms have the following respective meanings:
"Board" shall mean the Board of Directors of the Company.
"Call Shares" shall have the meaning specified in the Stockholders
Agreement.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the 1933 Act. "Common Stock"
shall mean the authorized common stock of the Company, par value $.20 per share.
"50% Disposition Date" shall mean such time as the Principal
Stockholder has disposed of at least one-half of the shares of Common Stock
issued to the Principal Stockholder in connection with the merger of Jupiter
Acquisition Corp. with and into the Company.
"in-the-money" shall have the meaning specified in the Stockholders
Agreement.
20
"Jupiter" shall mean the Principal Stockholder, as defined in the
Stockholders Agreement.
"Management Stockholders" shall have the meaning specified in the
Stockholders Agreement.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"Proportional Amount" shall have the meaning specified in Section 1(a).
"Permitted Transferees" shall have the meaning specified in the
Stockholders Agreement.
"person" shall mean any individual, firm, corporation, limited
liability company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"Registrable Securities" shall mean any shares of Common Stock issued
or issuable to any of Jupiter, the Management Stockholders or any of their
transferees (but only if such transfer was made in compliance with the terms of
the Stockholders Agreement and such transferee became a party to the
Stockholders Agreement), but with respect to any particular share of Common
Stock, only until such time as such share (i) has been effectively registered
under the 1933 Act and disposed of in accordance with the registration statement
covering it, (ii) has been sold to the public pursuant to Rule 144 (or any
similar provision then in effect) under the 1933 Act, or (iii) has ceased to be
outstanding; provided that any shares of Common Stock issued or issuable to a
Management Stockholder whose employment
21
with the Company and/or any of its subsidiaries has terminated shall only be
deemed to be Registrable Securities hereunder if such employment was terminated
Without Cause.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Sections 1 (Demand Registration), 2
(Piggy-back Registration) or 3 (Registration Procedures), including, without
limitation, all registration and filing fees, all fees of the New York Stock
Exchange, Inc., other national securities exchanges or the National Association
of Securities Dealers, Inc., all fees and expenses of complying with federal
securities or blue sky laws, all word processing, duplicating and printing
expenses (including expenses of printing prospectuses and of certificates for
the Registrable Securities), messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters required by or
incident to such performance and compliance, any fees and disburse ments of
underwriters customarily paid by issuers or sellers of securities (excluding any
underwriting discounts or commissions with respect to the Registrable
Securities), any fees and expenses associated with any road show, and the fees
and expenses of one counsel to the Selling Holders or the Requesting Holders, as
applicable (selected by Selling Holders or the Requesting Holders, as
applicable, representing at least 50% of the Registrable Securities covered by
such registration).
"Stockholders Agreement" shall have the meaning specified in the
introductory paragraph hereto and shall mean the Stockholders Agreement as in
effect on the date hereof.
22
"Without Cause," with respect to a Management Stockholder, shall mean
the termination of such Management Stockholder's employment with the Company or
any of its subsidiaries for any reason (including due to death, Disability or
for Good Reason (as such terms are defined in the Stockholders Agreement)),
other than a termination for Cause (as defined in the Stockholders Agreement).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PCA INTERNATIONAL, INC.
By:________________________________
Name:
Title:
JUPITER PARTNERS II L.P.
By: GANYMEDE II LLC, its
General Partner
By:________________________________
Name:
MANAGEMENT STOCKHOLDERS:
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