EXHIBIT 9.1
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT dated as of September 18, 1997
among THE CHILDREN'S PLACE RETAIL STORES, INC., a Delaware corporation (the
"Company"), each of the Persons listed on Schedule 1 and a signatory hereto
(each a "Management Stockholder" and, collectively, the "Management
Stockholders"), THE SK EQUITY FUND, L.P., a Delaware limited partnership ("SK"),
SK INVESTMENT FUND, L.P., a Delaware limited partnership ("SKIF"), and XXXXX
XXXXXXXX ("Xxxxxxxx") (each of the Management Stockholders, SK, SKIF and
Xxxxxxxx, and their permitted Transferees, a "Stockholder" and, collectively,
the "Stockholders").
RECITALS
A. The Company and the Stockholders entered into a Stockholders Agreement
dated June 28, 1996 (the "Original Stockholders Agreement"), setting forth
certain rights and obligations of the Company and the Stockholders with respect
to various matters, in order to ensure a degree of continuity of management and
ownership of and certain rights in respect of the Company by imposing certain
restrictions and obligations on the ownership, retention and disposition of the
capital stock of the Company.
B. As of the date hereof, the Management Stockholders own an aggregate of
9,893,400 shares of the Company's Common Stock.
C. As of the date hereof, SK owns 7,458,445 shares of the Company's Common
Stock, SKIF owns 108,108 shares of Common Stock and Xxxxxxxx owns 93,336 shares
of Common Stock, all of which shares were issued upon conversion of shares of
the Company's Series B Common Stock previously owned by such holders, in
accordance with the terms set forth in the Company's Amended and Restated
Certificate of Incorporation.
D. The Company and the Stockholders have now agreed that, in connection
with the Company's initial public offering, it is desirable and in the best
interest of the Company that the Original Stockholders Agreement be amended and
restated in its entirety to read as hereinafter set forth.
E. NOW, THEREFORE, the parties hereto agree that the Original Stockholders
Agreement is hereby amended and restated in its entirety, effective as of the
Effective Date (as defined below), to read in its entirety as follows:
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I. DEFINITIONS
1.1. Definitions. (a) In addition to the terms defined elsewhere herein,
the following terms have the following meanings when used herein with initial
capital letters:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with, such
Person. For the purposes of this definition, "control" when used with respect to
any Person, means 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; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" means this Agreement, as the same may be amended from time to
time.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized by law to close.
"Charter" means the Amended and Restated Certificate of Incorporation of
the Company as amended from time to time.
"Change of Control" means when any Person becomes the "beneficial owner"
(as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 50%
or more of either (A) the then outstanding shares of Common Stock of the Company
or (B) the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors.
"Common Stock" means the Common Stock, par value $0.10 per share, of the
Company.
"Designated Management Stockholders" means Xxxx Xxxxx, Xxxxxxx Xxxxxx and
any trust to which Xxxx Xxxxx or Xxxxxxx Xxxxxx Transferred shares of Common
Stock after the date of the Original Stockholders Agreement.
"Director" means a member of the Board of Directors of the Company.
"Duly Endorsed" means duly endorsed in blank by the Person in whose name a
certificate representing a security is registered or accompanied by a duly
executed instrument of assignment separate from the certificate.
"Effective Date" means the date of consummation of the Company's initial
public offering under the Securities Act.
"Management Permitted Transferee" means with respect to any Management
Stockholder, (i) any spouse or lineal descendant of such Management Stockholder,
(ii) any trust all of the beneficial interests in which is held by such
Management Stockholder and/or such Management Stockholder's spouse and/or lineal
descendants, and (iii) any other Management
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Stockholder; provided, however, that each such Transferee will be a Management
Permitted Transferee for purposes of this Agreement only if such Transferee
shall have executed and delivered to the Company an instrument reasonably
satisfactory to the SK Holders pursuant to which the Transferee shall have
agreed to be bound by the terms of this Agreement applicable to its Transferor.
"Management Stockholder Group" means each of the Management Stockholders
or any Management Permitted Transferee.
"Person" means an individual, corporation, partnership, trust, association
or any other entity or organization, including without limitation a government
or political subdivision or an agency or instrumentality thereof.
"pro rata" means, with respect to any offer including Common Stock, an
offer based on the relative percentages of Common Stock then held by all of the
holders of Common Stock to whom such offer is made.
"Public Offering" means any primary or secondary public offering of Common
Stock pursuant to an effective registration statement under the Securities Act,
other than pursuant to a registration statement on Form S-4 or Form S-8 or any
successor or similar form.
"Purchase Agreement" means the Purchase Agreement dated as of June 28,
1996 among the Company, SK and SKIF and Xxxxxxxx.
"Relinquishment Time" means the time at which the SK Holders own less than
25% of the shares of Common Stock owned by SK and SKIF as of the Effective Date
(as adjusted to give effect to any stock dividend, stock split, recapitalization
or similar event affecting the then-outstanding Common Stock).
"Rule 144" means Rule 144 under the Securities Act, as such rule may be
amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"XX Xxxxxx" means SK, SKIF, Xxxxxxxx or any permitted Transferee thereof.
For purposes of this Agreement, any action or consent contemplated to be taken
or given by the SK Holders will be effective if taken or given, as the case may
be, by the XX Xxxxxx which owns the largest portion of the Common Stock owned by
all SK Holders as of the relevant time.
"Third Party" means a prospective purchaser of Securities in an
arm's-length transaction in which such purchaser is not the Company, an
Affiliate of the Company or an Affiliate of any Stockholder.
"Transferee" means any Person to whom any Stockholder Transfers (as
defined in Section 2.1) any Common Stock other than in a sale pursuant to an
effective registration statement under the Securities Act or a public sale
pursuant to Rule 144.
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(b) Except as otherwise provided herein, any right or action that may be
taken at the election of the Management Stockholder Group will be taken by a
representative of the Management Stockholder Group (the "Management Group
Representative") on behalf of the entire Management Stockholder Group. The
initial Management Group Representative will be Xxxx Xxxxx. Upon the death or
permanent disability (or during any period of temporary disability) of Xxxx
Xxxxx, the Management Stockholder Group may designate a successor Management
Group Representative upon vote of the members thereof holding a majority of the
Common Stock held by the Management Stockholder Group; provided, however, that
(i) if no such successor is so designated within 30 calendar days from such
death or permanent disability, such successor will be a member of the Management
Stockholder Group designated by the SK Holders, until a successor is designated
by the Management Stockholder Group and (ii) in the event that no Person is
acting as the Management Group Representative as of the time any action is
otherwise to be taken hereunder by the Management Group Representative or the
Management Stockholder Group, such action may be taken on behalf of the entire
Management Stockholder Group by written action or consent of the holders of a
majority of shares of Common Stock then held by the members of the Management
Stockholder Group. Any change in the Management Group Representative will become
effective upon notice in accordance with Section 4.3.
II. RIGHTS AND OBLIGATIONS WITH RESPECT TO TRANSFER
2.1. Restrictions on Transfers by Designated Management Stockholders. None
of the Designated Management Stockholders may offer, sell, assign, grant a
participation in, pledge or otherwise transfer ("Transfer") any shares of Common
Stock (other than shares of Common Stock acquired upon exercise of stock
options) during the period of 20 months from the Effective Date without the
prior written consent of the SK Holders and the Company; provided, however, that
the restrictions in this Section 2.1 will not apply (i) to Transfers to any
Management Permitted Transferee, (ii) to Transfers made pursuant to an effective
registration statement under the Securities Act, (iii) to Transfers in "brokers'
transactions" or transactions directly with a "market maker" pursuant to Rule
144 (a "Rule 144 Transfer"), (iv) to Transfers in connection with a sale of 100%
of the outstanding Common Stock to a Third Party or (v) to Transfers pursuant to
Section 2.7.
2.2. Restrictive Legend. (a) Each certificate representing Common Stock
owned by any Stockholder will include the following legend (in addition to such
legends as may be appropriate under the securities laws):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF SEPTEMBER 18, 1997, AS FROM TIME TO
TIME AMENDED, A COPY OF WHICH MAY BE OBTAINED FROM THE CHILDREN'S PLACE
RETAIL STORES, INC."
(b) Each certificate representing Common Stock owned by any Stockholder or
any Transferee thereof (other than shares that have been sold pursuant to an
effective registration statement under the Securities Act or in accordance with
Rule 144 under the Securities Act) will
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(unless otherwise permitted by the provisions of Section 2.2(c)) include a
legend substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM."
Each holder of Common Stock represented by a certificate which bears the legend
described above, by its acceptance or purchase thereof, agrees that prior to the
effectiveness of any proposed Transfer of any such Common Stock (except pursuant
to an effective registration statement) such holder will give written notice to
the Company of such proposed Transfer, briefly describing the proposed Transfer.
Such notice will, unless waived by the Company, be accompanied by a written
opinion, addressed to the Company, of counsel for such holder stating that in
the opinion of such counsel (which opinion will be reasonably satisfactory to
the Company) such proposed Transfer does not require registration of such Common
Stock under the Securities Act or the securities laws of any state.
(c) Any Stockholder may, upon providing evidence (which, if required by
the Company, may include an opinion of counsel) reasonably satisfactory to the
Company, that such Securities either are not "restricted securities" (as defined
in Rule 144) or may be sold pursuant to Rule 144(k), exchange the certificate
representing such Securities for a new certificate that does not bear a legend
relating to restrictions under the securities laws.
2.3. Tag-Along Rights. (a) If, at any time prior to when the SK Holders
collectively own 30% or less of the Common Stock owned collectively by the SK
Holders as of the Effective Date, any Designated Management Stockholder (a
"Selling Management Stockholder") proposes to Transfer (other than pursuant to a
Public Offering or a Rule 144 Transfer or pursuant to Section 2.7 or to a
Management Stockholder Permitted Transferee) any of its Common Stock (other than
shares acquired upon exercise of stock options) representing more than 1% of the
outstanding Common Stock either to (i) any Third Party pursuant to a bona fide
offer to purchase or (ii) the Company (in the case of clause (i) and (ii), a
"Tag-Along Offer"), the Selling Management Stockholder will provide written
notice of such Tag-Along Offer to the Company and each of the SK Holders in the
manner set forth in this Section 2.3; provided, however, that nothing in this
Section 2.3 will affect the restrictions on Transfers by the Management
Stockholders contained in Section 2.1. Such written notice will identify the
proposed purchaser, the number of shares of Common Stock proposed to be
purchased from the Selling Management Stockholder (or if greater, the number of
shares of Common Stock such Person is willing to purchase (the "Desired
Shares")), the Tag-Along Ratio (as defined in Section 2.3(d)) that would apply
if all the SK Holders become Co-Selling Stockholders (as defined below), the
consideration offered and all other material terms and conditions of the
Tag-Along Offer. If the offer price consists in part or in whole of
consideration other than cash, the Selling Management Stockholder will provide
such information, to the extent reasonably available to the Selling
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Management Stockholder, relating to such consideration as any XX Xxxxxx may
reasonably request in order to evaluate such non-cash consideration.
(b) The SK Holders will have the right, exercisable as set forth below, to
accept the Tag-Along Offer for up to the number of shares of Common Stock
determined pursuant to Section 2.3(d). The SK Holders will, within ten Business
Days after receipt of the written notice from the Selling Management
Stockholder, provide the Selling Management Stockholder with an irrevocable
written notice specifying the number of shares of Common Stock the SK Holders
wish to Transfer, not to exceed the number of Desired Shares, and the allocation
of such shares among the SK Holders and will simultaneously provide a copy of
such notice to the Company. If the SK Holders do not accept the Tag-Along Offer
within ten Business Days following receipt of written notice from the Selling
Management Stockholder, the SK Holders will be deemed to have waived any and all
rights under this Section 2.3 with respect to the Transfer of Common Stock
pursuant to such Tag-Along Offer but nothing herein will affect the SK Holders'
rights in respect of any other transaction or proposed transaction.
(c) Not less than seven Business Days prior to the proposed date of any
sale pursuant to a Tag-Along Offer, the Selling Management Stockholders will
notify the SK Holders which have accepted the Tag-Along Offer (each, a
"Co-Selling Stockholder") of such proposed date. Not less than two Business Days
prior to such proposed date of sale, the Co-Selling Stockholders will deliver to
an Escrow Agent (the costs of which Escrow Agent will be borne by the Selling
Management Stockholder and the Co-Selling Stockholders in proportion to the
shares of Common Stock Transferred by such Selling Management Stockholder and
Co-Selling Stockholders in connection with such Tag-Along Offer) the Duly
Endorsed certificate or certificates representing the Common Stock to be
Transferred by the Co-Selling Stockholders and all other documents reasonably
required to be executed in connection with such Tag-Along Offer.
(d) Each Co-Selling Stockholder will have the right to Transfer (and the
Selling Management Stockholder will, to the extent necessary, reduce the amount
or number of shares of Common Stock to be Transferred by the Selling Management
Stockholder by a corresponding amount), pursuant to the Tag-Along Offer, a
number of shares of Common Stock equal to the product of the Desired Shares
multiplied by a fraction (the "Tag-Along Ratio"), the numerator of which will be
the aggregate amount or number of shares of Common Stock owned by such
Co-Selling Stockholder and the denominator of which will be the aggregate number
of shares of Common Stock owned by the Selling Management Stockholder and all
Co-Selling Stockholders.
(e) The Selling Management Stockholder will have 90 Business Days from the
end of the ten Business Day period referred to in paragraph (b) above in which
to consummate the Transfer of Common Stock owned by such Selling Management
Stockholder and the Co-Selling Stockholders as contemplated by the Tag-Along
Offer at the price and on the terms contained in such notice. If, at the end of
such 90 Business Day period, the Selling Management Stockholder has not
completed such Transfer, the right of the Selling Management Stockholder to
effect such Transfer will terminate, and the Common Stock of the Selling
Management Stockholders subject
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to such proposed Transfer will again be subject to all the restrictions on sale
or other disposition and other provisions contained in this Agreement.
(f) Immediately after the consummation of the Transfer of Common Stock
pursuant to the Tag-Along Offer, the Escrow Agent will notify the Co-Selling
Stockholders thereof and will remit to each Co-Selling Stockholder the total
sales price attributable to the Common Stock of such Co-Selling Stockholder sold
pursuant thereto less a pro rata portion of the expenses incurred in connection
with such sale.
(g) Notwithstanding anything contained in this Section 2.3, there will be
no liability on the part of the Selling Management Stockholders to any
Stockholder (including any Co-Selling Stockholder) if the Transfer of Common
Stock by the Selling Management Stockholder and any Co-Selling Stockholder
pursuant to Section 2.3 is not consummated for whatever reason. The Management
Stockholders, in their sole discretion, will determine whether to effect a sale
of Common Stock to any Person pursuant to this Section 2.3.
(h) In connection with any Transfer of Common Stock as to which the SK
Holders have Tag-Along rights pursuant to this Section 2.3, the Transferee of
such Common Stock will not be required to execute a counterpart of this
Agreement or become subject to this Agreement.
(i) No failure to exercise any rights or take any other action in respect
of any Tag-Along Offer will affect any XX Xxxxxx'x rights in respect of any
subsequent Tag-Along Offer or other rights hereunder.
2.4. Restrictions on Transfers by SK Holders. (a) Notwithstanding any
other provision of this Agreement to the contrary, without the prior written
consent of the Company and the Management Group Representative, the SK Holders
will not Transfer any of the Common Stock held by them to any of the following
Persons: (a) any Direct Competitor of the Company, (b) Xxxx Capital, (c) The
Sprout Group, (d) any Person who serves or who has designated a representative
to serve on the board of directors of any Direct Competitor of the Company, or
(e) any Person who does not agree in writing to comply with and be bound by this
Agreement. For purposes of this Section 2.4, a "Direct Competitor of the
Company" means (i) The Gap, Inc. or any Person under common control with The
Gap, Inc. (provided that at the time of such Transfer, The Gap, Inc. continues
to own and operate its GapKids division), (ii) The Limited, Inc. or any Person
under common control with The Limited, Inc. (provided that at the time of such
Transfer, The Limited, Inc. continues to own and operate its Limited Too
division), (iii) Gymboree or Baby Superstore or any Person under common control
with Gymboree or Baby Superstore, as the case may be, or (iv) any Person whose
principal business activity is the sale of children's apparel and who derives
more than 50% of its gross revenues from the retail sales of children's apparel.
(b) Each of the SK Holders will provide the Company and the Management
Group Representative with ten Business Days' prior written notice of its intent
to pursue or to enter into discussions concerning a sale of any Common Stock
held by the SK Holders to a Third Party.
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2.5. Improper Transfer. (a) Any attempt to Transfer any Common Stock not
in compliance with this Agreement will be null and void and neither the Company
nor any transfer agent of the Company will register, or otherwise recognize in
the Company's records, any such improper Transfer. Any cost or loss incurred as
a result of any such attempt to transfer shall be borne by the Stockholder who
attempted to Transfer.
(b) No Stockholder will enter into any transaction or series of
transactions for the purpose or with the effect of, directly or indirectly,
denying or impairing the rights or obligations of any Person under this
Agreement, and any such transaction will be null and void and, to the extent
that such transaction requires any action by the Company, it will not be
registered or otherwise recognized in the Company's records or otherwise.
2.6. Transferees. Except as expressly provided otherwise in this
Agreement, any and all provisions of this Agreement which apply to the
Stockholders will apply with equal force to any Transferee (other than any
Transferees of Management Stockholders other than the Designated Management
Stockholders.)
2.7. Certain Transfer Rights for Designated Management Stockholders. (a)
Notwithstanding the provisions of Section 2.1 or 2.3, any Designated Management
Stockholder (other than Xxxxxxx Xxxxxx) may transfer to a Third Party at any
time up to 20% of the Common Stock held by such Designated Management
Stockholder in accordance with the provisions of paragraphs (e), (f), (g) and
(h) of this Section 2.7.
(b) Notwithstanding the provisions of Section 2.1 or 2.3, at any time
after the death or permanent disability of Xxxx Xxxxx, Xxxx Xxxxx or Xxxx
Xxxxx'x heirs and successors (the "Xxxxx Estate"), the wife or any lineal
descendant of Xxxx Xxxxx to whom he Transfers shares (a "Xxxxx Family Member"),
any of the trusts set forth on Schedule 2.9(b) and any trusts established by
Xxxx Xxxxx which is a Management Permitted Transferee and to whom he Transfers
shares of his Common Stock after June 28, 1996 (each, a "Xxxxx Trust" and,
together with Xxxx Xxxxx, the Xxxxx Estate and any Xxxxx Family Member, a "Xxxxx
Transferor") shall collectively have the right to Transfer to a Third Party up
to 100% of the Common Stock held collectively by the Xxxxx Transferors, in
accordance with the provisions of paragraphs (e), (f), (g) and (h) of this
Section 2.7.
(c) Notwithstanding the provisions of Section 2.1 or 2.3, at any time
after the termination of Xxxx Xxxxx'x employment without cause (as defined in
his employment agreement) following a Change of Control or Xxxx Xxxxx'x
resignation from the Company for good reason (as so defined therein) following a
Change of Control, the Xxxxx Transferors shall collectively have the right to
Transfer to a Third Party up to 100% of the Common Stock held collectively by
the Xxxxx Transferors, in accordance with the provisions of paragraphs (e), (f),
(g) and (h) of this Section 2.7; provided, however, that the Xxxxx Transferors
shall not have the right to Transfer such shares to a Third Party pursuant to
this paragraph (c) in the event that Xxxx Xxxxx directly Transferred Shares of
Common Stock to a Third Party which Transfer resulted, in whole or in part, in
such Change of Control.
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(d) Notwithstanding the provisions of Section 2.1 or 2.3, at any time
after the death, permanent disability or termination of employment without cause
(as defined in his employment agreement) of Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx or
Xxxxxxx Xxxxxx'x heirs and successors (the "Silver Estate"), as the case may be,
the wife or any lineal descendant of Xxxxxxx Xxxxxx to whom he Transfers shares
(a "Silver Family Member") and any trust established by Xxxxxxx Xxxxxx which is
a Management Permitted Transferee (a "Silver Trust" and, together with Xxxxxxx
Xxxxxx, the Silver Estate and any Silver Family Member, a "Xxxxxxx Transferor")
shall collectively have the right to Transfer to a Third Party up to 100% of the
Common Stock held collectively by the Silver Transferors, in accordance with the
provisions of paragraphs (e), (f), (g) and (h) of this Section 2.7.
(e) Prior to consummating any Transfer (excluding Transfers of the types
described in clauses (i), (ii), (iii) or (iv) of the proviso to Section 2.1 or
Transfers of shares representing less than 1% of the outstanding Common Stock)
pursuant to this Section 2.7 (a "Third Party Sale"), the Xxxxx Transferors or
the Silver Transferors (each, a "Transferor," collectively, the "Transferors"),
as the case may be, will deliver to the Company a written notice (a "Company
ROFR Offer Notice"), specifying (i) the aggregate amount of cash consideration
(the "Offer Price") for which the Transferor proposes to sell shares in such
proposed Third Party Sale, (ii) the identity of the purchaser in such Third
Party Sale and (iii) any other material terms of the proposed Third Party Sale.
If the Company delivers to the Transferor a written notice (a "Company ROFR
Acceptance Notice") within 10 calendar days following the delivery of the
Company ROFR Offer Notice (such 10 calendar day period being referred to herein
as the "Company ROFR Acceptance Period") stating that the Company is willing to
purchase all of the offered shares at the Offer Price, the Transferor will sell
all (but not less than all) of the offered shares to the Company at the Offer
Price, and the Company will purchase such offered shares from the Transferor, on
the terms and subject to the conditions set forth below (the "Company ROFR
Purchase").
(f) If the Company does not accept the offer during the Company ROFR
Acceptance Period pursuant to the Company ROFR Offer Notice, then such
Transferor will deliver to the SK Holders a written notice (an "SK ROFR Offer
Notice"), specifying (i) the Offer Price for which the Transferor proposed to
sell its shares in such proposed Third Party Sale (ii) the identity of the
purchaser in such Third Party Sale and (iii) any other material terms of the
proposed Third Party Sale. If the SK Holders deliver to the Transferor a written
notice (an "SK ROFR Acceptance Notice") within 10 calendar days following the
delivery of the SK ROFR Offer Notice (such 10 calendar day period being referred
to herein as the "SK ROFR Acceptance Period") stating that the SK Holders are
willing to purchase all of the offered shares at the Offer Price, the Transferor
will sell all (but not less than all) of the offer shares to the SK Holders at
the Offer Price, and the SK Holders will purchase such offered shares from the
Transferor, on the terms and subject to the conditions set forth below (the "SK
ROFR Purchase").
(g) The consummation of any Company ROFR Purchase or SK ROFR Purchase, as
the case may be, pursuant to this Section 2.7 (the "ROFR Closing") will occur
not later than 60 calendar days following the delivery of a Company ROFR
Acceptance Notice or SK ROFR Acceptance Notice, as the case may be (the
intervening period being referred to herein as the
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"ROFR Closing Period"), at such time and place as may be reasonably designated
by the Company or the SK Holders, as the case may be. At the ROFR Closing, (i)
such Transferor will deliver to the Company or the SK Holders, as the case may
be, duly endorsed certificates evidencing all of the shares of Common Stock to
be purchased by the Company or the SK Holders, as the case may be, and (ii) the
Company or the SK Holders, as the case may be, will deliver to such Transferor
by wire transfer to an account designated by such Transferor an amount in
immediately available funds equal to the Offer Price.
(h) If the Company or the SK Holders, as the case may be, do not accept
the offer during the Company ROFR Acceptance Period or the SK ROFR Acceptance
Period, as the case may be, pursuant to the Company ROFR Offer Notice or the SK
ROFR Offer Notice, as the case may be, then such Transferor may Transfer to a
Third Party the shares so offered at a price no less than 95% of, and on terms
no less favorable to the transferee than the price and other terms set forth in
the original Company ROFR Offer Notice or SK ROFR Offer Notice, as the case may
be, at any time within 90 days after the expiration of the Company ROFR
Acceptance Period or the SK ROFR Acceptance Period, as the case may be.
(i) Notwithstanding any of the other provisions of this Section 2.7, in
the event of any proposed Transfer of at least 20% of the shares of Common Stock
owned by the Xxxxx Transferors arising as a result of the death or permanent
disability of Xxxx Xxxxx, the SK Holders shall have the right, upon notice of a
proposed Transfer by a Xxxxx Transferor pursuant to this Section 2.7, to effect
the sale to a Third Party of all the outstanding equity securities of the
Company owned by the Stockholders by delivery of a notice of such sale to the
Company and the Stockholders within 30 days of notice of any such proposed
Transfer pursuant to this Section 2.7.
(j) In the event that the Company does not accept a Company ROFR Offer
Notice during the Company ROFR Acceptance Period in any case where the Company
ROFR Offer Notice was given as a result of an event described in paragraph (b)
of this Section 2.7, each of the Xxxxx Transferors agrees that, if the
stockholders of the Company thereafter are given the opportunity to vote on a
proposed sale of the Company or substantially all of the Company's assets to a
Third Party, the Xxxxx Transferors shall vote all shares of the Company's common
stock in favor of such proposed sale, if so requested by the SK Holders.
III. CERTAIN ARRANGEMENTS
3.1. Board of Directors. (a) Prior to consummation of the Company's
initial public offering, the Stockholders will (i) elect those individuals set
forth on Exhibit 3.1A as Directors of the Company, (ii) approve the adoption of
the Amended and Restated Certificate of Incorporation in the form of Exhibit
3.1B and (iii) cause the Board of Directors to adopt the By-laws in the form of
Exhibit 3.1C. Thereafter and until the Relinquishment Time, each Stockholder
will vote all shares of Common Stock as to which such Stockholder has voting
rights for the election as Directors of the Company of (x) Xxxx Xxxxxx and Xxxxx
Xxxx, or, if either of them shall cease to be affiliated with SK, a substitute
for such person designated from time to time by the SK Holders and acceptable to
the Management Group Representative (it
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being agreed that any partner, principal, officer or professional employee of
Xxxxxxxx Xxxx & Co., L.P. will be deemed acceptable to the Management Group
Representative so long as at least one partner or principal of Xxxxxxxx Xxxx &
Xxxxxx, X.X. is a Director of the Company) (the Directors serving pursuant to
this clause (x) being called the "SK Directors"), and (y) three persons
designated from time to time by the Management Group Representative. The
Stockholders further agree that (i) one director designated by the SK Holders
and one director designated by the Management Group Representative shall be
members of the class of directors standing for re-election in 1998, (ii) one
director designated by the SK Holders and one director designated by the
Management Group Representative shall be members of the class of directors
standing for re-election in 1999, and (iii) one director designated by the
Management Group Representative shall be a member of the class of directors
standing for re-election in 2000.
(b) Each of the Stockholders further agrees to vote all the shares of
Common Stock with respect to which it has voting rights, and to cause all
persons designated by it as Directors to vote, (i) in favor of the removal from
the Board of Directors, at the request of the SK Holders or the Management Group
Representative upon notice to the other Stockholders, of any person or persons
designated by the SK Holders or the Management Group Representative, as the case
may be, and to elect to the unexpired term of each Director so removed another
person designated by the SK Holders or the Management Group Representative, as
the case may be, and (ii) in the event of any vacancy on the Board of Directors
by reason of death, resignation or otherwise, to elect to such unexpired term
another person designated in accordance with Section 3.1(a) by the Stockholder
that designated the Director who previously served as such.
(c) The Company agrees that, until the Relinquishment Time, the Company
shall take all necessary steps to cause one member of the Compensation Committee
of the Board of Directors, one member of any Stock Option Committee of the Board
of Directors, and, if permitted by the rules of the Nasdaq National Market, one
member of the Audit Committee of the Board of Directors to be a director
nominated by the SK Holders pursuant to clause (x) of Section 3.1(a).
(d) The Company and the Stockholders acknowledge their mutual intention
that two additional directors not affiliated with the Company or with the SK
Holders ("Outside Directors") shall be elected to the Board of Directors as
promptly as practicable after the Effective Date, in accordance with the rules
of the Nasdaq National Market. The Outside Directors shall be selected by Xxxx
Xxxxx and shall be approved by the SK Holders (such approval not to be
unreasonably withheld).
3.2. Limitation on Certain Board Actions. (a) Notwithstanding any other
provision of the Charter, the By-Laws or applicable law, without the prior
approval of at least one SK Director, the Company will not:
(i) amend its Charter or By-laws;
(ii) increase the number of directors to a number greater than
seven; or
11
(iii) other than as contemplated by the Employment Agreements as in
effect on the Effective Date between the Company and Xxxx Xxxxx and
Xxxxxxx Xxxxxx or by the Company's 1996 Stock Option Plan or 1997 Stock
Option Plan, make or enter into, or amend or modify in any respect, any
term or provision of any contract, commitment, arrangement or transaction
involving the transfer of money, property or anything else of value or
provision of services to or by any Stockholder or any Affiliate thereof,
other than transactions entered into in the ordinary course of business on
arm's-length terms with a transaction value of less than $20,000;
provided, however, that the Company may make or enter into any contract or
arrangement for the employment of any relative or Affiliate on an
arm's-length basis in accordance with the following: (i) the Company shall
provide the SK Directors prior written notice of its intent to extend an
employment offer to a relative or Affiliate including the terms of the
offer, (ii) the offer of employment shall be for a position with the
Company below the level of Vice President, (iii) the position shall
provide for total cash compensation (salary and bonus) of $75,000 or less
and offer perquisites and benefits identical to those offered to similarly
situated employees, and (iv) the Company shall obtain one SK Director's
prior written consent before offering any promotion to such relative or
Affiliate to a position of Vice President or above or to a position that
provides for total cash compensation (salary and bonus) in excess of
$75,000 or offers perquisites and benefits not offered to similarly
situated employees.
For purposes of this Section 3.2(a), an SK Director shall be deemed to
have approved any matter listed above in this Section 3.2(a) if (i) such matter
received the affirmative vote of a majority of the Directors at a meeting duly
called and held and (ii) neither of the SK Directors attended (in person or by
telephone) such meeting (the "First Meeting") and the notice of meeting
specifically referred to such matter; provided, however, if an SK Director
advised the Company in writing prior to such meeting that he desired to discuss
the matter at a later meeting, such matter shall not be deemed approved unless
neither of the SK Directors attended (in person or by telephone) a second
meeting and the notice of such second meeting specifically referred to the same
such matter referred to in the notice of the First Meeting.
(b) Notwithstanding any other provision of the Charter, the By-Laws or
applicable law, without the prior approval of at least two-thirds of the members
of the Board of Directors, the Company will not:
(i) agree to acquire, purchase or lease, except operating leases,
any assets which are material, individually or in the aggregate, to the
business of the Company (other than purchases of inventory in the ordinary
course of business);
(ii) other than (x) as provided for in the Loan and Security
Agreement between the Company and Foothill Capital Corporation, as amended
(the "Foothill Agreement"), or any future amendment thereto or (y)
pursuant to any refinancing of the indebtedness under the Foothill
Agreement (whether or not Foothill Capital Corporation is a party to such
refinancing), incur any indebtedness for borrowed money in excess of
$2,000,000 or guarantee any such indebtedness or sell any debt securities
of the Company in a principal amount in excess of $2,000,000 or guarantee
any debt securities of any
12
Person (other than debt securities of a wholly-owned subsidiary in a
principal amount not exceeding $2,000,000);
(iii) voluntarily mortgage, pledge or encumber all or substantially
all of the Company's assets or business, other than as collateral for
indebtedness under the Foothill Agreement or any refinancing thereof;
(iv) establish any committees of the Board of Directors (other than
the Audit Committee, the Compensation Committee or the Stock Option
Committee) or delegate authority to any committees (other than the
authority delegated as of the Effective Date to the aforementioned
committees);
(v) authorize any delegation by the Board of Directors to any
committee of a power not possessed by the Board of Directors, or any
authorization of any Committee to undertake any action which the Board of
Directors is not authorized to undertake;
(vi) make any investments (other than certificates of deposit issued
by domestic banks and short-term liquid investments having maturities not
longer than 90 days) at any one time outstanding in excess of $2,000,000,
individually or in the aggregate;
(vii) commence any case, proceeding or other action relating to
bankruptcy or reorganization of the Company; or
(viii) distribute income or assets or declare any dividends.
3.3. Board Observers. Until the Relinquishment Time, the SK Holders will
have the right, by written notice to the Company, to select two individuals to
observe and be present at meetings of the Board of Directors (the "Board
Observers") in the manner set forth in this Section 3.3. The Board Observers
will be obligated to execute reasonable confidentiality undertakings and will be
entitled (a) to be given notice by the Secretary of the Company, at the same
time as the SK Directors of the time and place at which such meeting is to be
held; (b) to be present at all meetings of the Board of Directors except those
in which the Board of Directors meets in executive session; (c) to receive
copies of the minutes of the Board of Directors; and (d) receive copies of any
reports, memoranda or other documents distributed to the Board of Directors at
the same time such materials are given to the Directors.
3.4. Financial Information. The Company will transmit to the SK Holders
copies of all monthly management and financial reports, annual operating budgets
and any other financial or other information concerning the Company's operations
at the same time such financial and other information is given to the Directors.
In addition, the Company will promptly provide the SK Holders all other
information concerning the Company as may be reasonably requested by the SK
Holders from time to time to the extent such information can be provided without
interfering with the Company's business.
13
3.5. Confidentiality. In the event that any XX Xxxxxx proposes to make any
investments in any Direct Competitor of the Company, such XX Xxxxxx will provide
prior written notice to the Company of such proposed investment and in
connection therewith will enter into an appropriate confidentiality agreement
with the Company containing terms mutually agreed upon by the Company and such
XX Xxxxxx.
IV. MISCELLANEOUS
4.1. Headings. The headings in this Agreement are for convenience of
reference only and will not control or affect the meaning or construction of any
provisions hereof.
4.2. Entire Agreement; After-Acquired Securities. (a) This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter of this Agreement. This Agreement supersedes all prior agreements and
understandings, both oral and written, among the parties with respect to the
subject matter of this Agreement. This Agreement is not intended to confer upon
any Person other than the parties hereto and thereto any rights or remedies
hereunder or thereunder.
(b) Subject to Section 4.6, all capital stock or other equity securities
of the Company issued to or acquired by any Stockholder following the date of
this Agreement ("After-Acquired Securities") will be subject to the terms and
provisions of this Agreement as if such After-Acquired Securities were
outstanding on the date hereof.
4.3. Notices. Any notice, request, instruction or other document required
or permitted to be given hereunder by any party hereto to another party hereto
will be in writing and will be given to such party by certified mail at its
address set forth in Exhibit 4.3 attached hereto, with, in the case of the
Company, a copy sent to the Company's Secretary, at the Company's principal
executive offices or, in the case of a Transfer permitted hereunder, to the
address of the permitted Transferee specified by it upon notice given in
accordance with the terms hereof, or to such other address as the party to whom
notice is to be given may provide in a written notice to the party giving such
notice, a copy of which written notice will be on file with the Secretary of the
Company. Each such notice, request or other communication will be effective (a)
if given by certified mail, 96 hours after such communication is deposited in
the mails with certified postage prepaid addressed as aforesaid, (b) one
Business Day after being furnished to a nationally recognized overnight courier
for next Business Day delivery, and (c) on the date sent if sent by electronic
facsimile transmission, receipt confirmed.
4.4. Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the State of New York without regard to the
conflict of laws rules of such state, provided, however, that to the extent any
of the respective rights or obligations of the parties relate to matters of the
General Corporation Law of the State of Delaware (the "GCL"), the provisions of
the GCL shall govern in respect thereof.
4.5. Severability. The invalidity or unenforceability of any provisions of
this Agreement in any jurisdiction will not affect the validity, legality or
enforceability of the
14
remainder of this Agreement in such jurisdiction or the validity, legality or
enforceability of this Agreement, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder will be enforceable to the fullest extent permitted by law.
4.6. Termination; Termination of Rights. This Agreement may be terminated
at any time by an instrument in writing signed by (i) the SK Holders owning a
majority of the Common Stock then held by the SK Holders and entitled to the
benefits of this Agreement, (ii) the Stockholders, other than the SK Holders,
owning a majority of the Common Stock then held by such Stockholders and
entitled to the benefits of this Agreement and (iii) the Company. At such time
as any Stockholder owns 25% or less of the Common Stock owned by such
Stockholder on the Effective Date, all of such Stockholder's rights hereunder,
including without limitation such Stockholder's rights under Article II, will
terminate; provided, however, that all of such Stockholder's obligations
hereunder will remain in full force and effect. This Agreement will terminate
automatically when no Stockholder owns more than 25% of the Common Stock owned
by such Stockholder on the Effective Date.
4.7. Successors, Assigns and Transferees. The provisions of this Agreement
will be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors, assigns and permitted Transferees. Except as
expressly contemplated hereby, neither this Agreement nor any provision hereof
will be construed so as to confer any right or benefit upon any Person other
than the parties to this Agreement and their respective successors and assigns.
4.8. Amendments; Waivers. (a) No failure or delay on the part of any party
in exercising any right, power or privilege hereunder will operate as a waiver
thereof, nor will any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided will be cumulative and not exclusive of
any rights or remedies provided by law.
(b) Neither this Agreement nor any term or provision hereof may be amended
or waived except by an instrument in writing signed, by (i) the SK Holders
owning a majority of the Common Stock then held by the SK Holders and entitled
to the benefits of this Agreement, (ii) the Stockholders, other than the SK
Holders, owning a majority of the Common Stock then held by such Stockholders
and entitled to the benefits of this Agreement and (iii) the Company.
4.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original with the same effect as if the
signatures thereto and hereto were upon the same instrument.
4.10. Remedies. The parties hereby acknowledge that money damages would
not be adequate compensation for the damages that a party would suffer by reason
of a failure of any other party to perform any of the obligations under this
Agreement. Therefore, each party hereto agrees that specific performance is the
only appropriate remedy under this Agreement and hereby waives the claim or
defense that any other party has an adequate remedy at law.
15
4.11. Consent to Jurisdiction. Each of the Stockholders and the Company
irrevocably submits to the exclusive jurisdiction of either (i) any court
located in the Borough of Manhattan or the United States Federal Court sitting
in the Southern District of New York or (ii) any court located in the State of
Delaware or the United States District Court for the District of Delaware (and
any appellate court therefrom), over any suit, action or proceeding arising out
of or relating to this Agreement. Each of the Stockholders and the Company
consents to process being served in any such suit, action or proceeding by
serving a copy thereof upon the agent for service of process provided that to
the extent lawful and possible, written notice of such service will also be
mailed to such Stockholders or the any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction. Each of the Stockholders and the Company
waives any right it may have to assert the doctrine of forum non conveniens or
to object to venue to the extent any proceeding is brought in accordance with
this Section 4.11. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE CHILDREN'S PLACE RETAIL STORES, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer and Chairman
of the Board
/s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx
/s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
/s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxxxx
/s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
17
/s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxxx
18
Xxxx Xxxxx Grantor Trust
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Trustee
Xxxx Xxxxx and Xxxx Xxxxx as Trustees
u/a/d 8/25/88 f/b/o Xxxxxx Xxxxx, Xx.
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Trustee
Xxxx Xxxxx and Xxxx Xxxxx as Trustees
u/a/d 8/25/88 f/b/o Xxxxxxx Xxxxx
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Trustee
Xxxx Xxxxx and Xxxx Xxxxx as Trustees
u/a/d 8/25/88 f/b/o Xxx Xxxxx
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Trustee
Xxxx Xxxxx and Xxxxx Xxxxx as Custodians
under the UGMA f/b/o Xxxx Xxxxx
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Xxxxxxxxx
00
Xxxx Xxxxx and Xxxxx Xxxxx as Custodians
under the UGMA f/b/o Xxxxxx Xxxxx
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Custodian
Xxxxxx Xxxxx as Trustee
u/a/d 8/29/88 f/b/o Xxxxxx Xxxxx, Xx.
By:/s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Trustee
Xxxxxx Xxxxx as Trustee
u/a/d 8/29/88 f/b/o Xxxxxxx Xxxxx
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Trustee
Xxxxxx Xxxxx as Trustee
u/a/d 8/29/88 f/b/o Xxx Xxxxx
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Trustee
Xxxxxx Xxxxx as Trustee
u/a/d 8/29/88 f/b/o Xxxxxxx Xxxxx
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: Xxxxxxx
00
Xxxx Xxxxx and Xxxx Xxxxx as Trustees
u/a/d 8/31/92 f/b/o Xxxxxxx Xxxxx
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxxx Xxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
21
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxx Xxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
22
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxx Xxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees
u/a/d 2/2/97 f/b/o Xxxxxxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Trustee
23
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxx Xxxxx
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Trustee
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxxx Xxxxx
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Trustee
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Trustee
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxxxx Xxxxx
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Trustee
Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx, Trustees
u/a/d 2/2/97 f/b/o Xxxxxx Xxxxx
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Name: Xxxxx Xxxxx
Title: Trustee
24
THE SK EQUITY FUND, L.P.
By: SKM PARTNERS, L.P., General Partner
By: /s/ Xxxx Xxxxxx
-------------------------------------------
its General Partner
SK INVESTMENT FUND, L.P.
By: SKM PARTNERS, L.P., General Partner
By: /s/ Xxxx Xxxxxx
-------------------------------------------
its General Partner
/s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxx
25
Schedule 1
Management Stockholders
1. Xxxx Xxxxx
2. Xxxxx Xxxxx
3. Xxxxxxx Xxxxx
4. Xxxxxx Xxxxx
5. Xxxxxxx Xxxxxx
6. Xxxxxxx Xxxxxxxxxxx
7. Xxxxxx X. Xxxxxx
8. Xxxxxx X. Xxxxxx
9. Xxxxxxx X. Xxxxxxxx
10. Xxxxxx Xxxxxxxxx
11. Xxxx Xxxxx Grantor Trust
12. Xxxx Xxxxx and Xxxxx Xxxxx as custodians under the UGMA, F/B/O Xxxx Xxxxx.
00. Xxxx Xxxxx and Xxxxx Xxxxx as custodians under the UGMA, F/B/O Xxxxxx
Xxxxx.
00. Xxxx Xxxxx and Xxxx Xxxxx as Trustees, U/A/D 8/25/88, F/B/O Mac Xxxxx.
00. Xxxx Xxxxx and Xxxx Xxxxx as Trustees, U/A/D 8/25/88, F/B/O Xxxxxxx Xxxxx.
16. Xxxx Xxxxx and Xxxx Xxxxx as Trustees, U/A/D 8/25/88, F/B/O Xxxxxx Xxxxx,
Xx.
17. Xxxx Xxxxx and Xxxx Xxxxx as Trustees U/A/D 8/31/92, F/B/O Xxxxxxx Xxxxx.
00. Xxxxxx Xxxxx as Trustee U/A/D 8/29/88, F/B/O Xxxxxxx Xxxxx.
00. Xxxxxx Xxxxx as Trustee U/A/D 8/29/88, F/B/O Xxxxxx Xxxxx, Xx.
20. Xxxxxx Xxxxx as Trustee U/A/D 8/29/88, F/B/O Mac Xxxxx.
00. Xxxxxx Xxxxx as Trustee U/A/D 8/29/88, F/B/O Xxxxxxx Xxxxx.
00. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxx
Xxxxx.
26
23. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxx
Xxxxx.
00. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxx
Xxxxxxxxxxx.
25. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxxxx
Xxxxxxxxx.
26. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxxx
Xxxx.
27. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxxx
Xxxxx.
28. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxx
Xxxxx.
29. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxxx
Xxxxx.
30. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxxxx
Xxxxx.
31. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxxxx
Xxxxx.
32. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees X/X/X 0/0/00, X/X/X Xxxxxx
Xxxxx.
33. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxx
Xxxxxxxxxxx.
34. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O Xxxxxxxx
Xxxxxx.
35. Xxxxx Xxxxxxxxxxx and Xxxx Xxxxx as Trustees U/A/D 2/2/97, F/B/O
Xxxxxxxxxx Xxxxxx.
36. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxx
Xxxxx.
37. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxxx
Xxxxx.
38. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxxxx
Xxxxx.
39. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxxxx
Xxxxx.
40. Xxxxx Xxxxx and Xxxxx Xxxxxxxxxxx as Trustees X/X/X 0/0/00 X/X/X Xxxxxx
Xxxxx.
27
Exhibit 3.1A
Initial Directors of the Company
Xxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxxxx
Xxxx X. Xxxxxx
Xxxxx Xxxx
1
Exhibit 3.1B
Amended and Restated Certificate of Incorporation
1
Exhibit 3.1C
Amended and Restated By-Laws
1
Exhibit 4.3
Addresses for Notice
[to be inserted]
1
