Exhibit 10.5
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT is made as of October 23, 1996, by and among
Esquire Communications Ltd., a Delaware corporation (the "COMPANY"), Golder,
Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P., an Illinois limited partnership ("GTCR"),
each of the Persons listed on SCHEDULE I attached hereto (the "MANAGEMENT
STOCKHOLDERS") and each of the Persons listed on SCHEDULE II attached hereto
(the "INVESTOR STOCKHOLDERS") (GTCR, the Management Stockholders and the
Investor Stockholders are collectively referred to herein as the "STOCKHOLDERS,"
and each as a "STOCKHOLDER"). Unless otherwise indicated herein, capitalized
terms used herein are defined in Section 8 hereof.
WHEREAS, the parties hereto desire to establish the composition of the
Company's Board of Directors (the "BOARD"), to restrict the sale, assignment,
transfer, encumbrance or other disposition of the Common Stock and to provide
for certain rights and obligations in respect thereto as hereinafter provided.
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. VOTING AGREEMENT.
(a) From and after the date of this Agreement each Stockholder shall vote
all of his Stockholder Shares and shall take all other necessary or desirable
actions within his control (whether in his capacity as a stockholder, director
or officer of the Company or otherwise, and including, without limitation,
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), and the Company shall
take all necessary and desirable actions within its control (including, without
limitation, calling special board and stockholder meetings and filling Board
vacancies), so that:
(i) the authorized number of directors on the Board shall be established at
seven directors;
(ii) the following individuals shall be elected to the Board:
(A) two representatives designated by GTCR (the "GTCR REPRESENTATIVES");
(B) three representatives designated by the Management Stockholders (the
"MANAGEMENT REPRESENTATIVES"), determined by vote of the Management
Stockholders owning a majority of the Stockholder Shares held by all
Management Stockholders;
(C) two representatives jointly designated by GTCR and the Management
Stockholders (the "JOINT REPRESENTATIVES"), it being agreed that Xxxxxxxx
Xxxxxxxx and Xxxxxx Xxxxxx (collectively, the "INITIAL REPRESENTATIVES")
are acceptable to GTCR; provided that GTCR shall have the right at any time
(with or without cause) to remove the Initial Representatives from the
Board. The Joint Representatives shall be renominated and elected to the
Board at each subsequent annual meeting of the stockholders unless GTCR
notifies the Management Stockholders that it does not wish to renominate as
directors the then existing Joint Representatives. In such event, new Joint
Representatives shall be nominated pursuant to clause (iii) below;
(iii) the removal from the Board (with or without cause) of any GTCR
Representative or Management Representative designated hereunder shall be
at the written request, but only upon such written request, of the party or
parties that had designated such representative and under no other
circumstances. The removal from the Board (with or without cause) of any
Joint Representative (other than the Initial Representatives) designated
hereunder shall be either (A) at the written request of GTCR and the
Management Stockholders or (B) at the written request of GTCR provided that
such removal shall not be effective until such Joint Representative has
served at least six (6) months or, if earlier, until the next annual
stockholder meeting. Upon the removal of any Joint Representative
(including the Initial Representatives), the replacement Joint
Representative shall be jointly designated by GTCR and the Management
Stockholders; provided that if GTCR and the Management Stockholders cannot
agree on the replacement Joint Representative within 90 days after the
delivery of the applicable removal request, then GTCR shall designate such
new Joint Representative;
(iv) in the event that any GTCR Representative, Management Representative
or Joint Representative designated hereunder for any reason ceases to serve
as a member of the Board during his term of office, the resulting vacancy
on the Board shall be filled by a representative designated by the party or
parties that had the right to designate such representative as provided
hereunder; provided that, with respect to any vacancy resulting from the
departure of any Joint Representative, if GTCR and the Management
Stockholders cannot agree within 90 days following such departure on a
replacement then such vacancy shall be filled by a representative
designated by GTCR;
(v) the Compensation Committee of the Board shall include at least one
GTCR Representative; and
(vi) the Audit Committee of the Board shall include at least one GTCR
Representative.
(b) The Company shall pay the reasonable out-of-pocket expenses incurred by
each director in connection with attending the meetings of the Board or any
committee thereof. So long as any GTCR Director serves on the Board and for
three years thereafter, the Company shall maintain directors and officers
indemnity insurance coverage satisfactory to GTCR, and the Company's certificate
of incorporation and bylaws shall provide for indemnification and exculpation of
directors to the fullest extent permitted under applicable law.
(c) The rights of GTCR under this Section 1 shall terminate at such time as
GTCR and/or Affiliates of GTCR cease to hold in the aggregate at least 10% of
the Common Stock Outstanding; provided that GTCR may assign its right to
designate representatives hereunder to any Person or group of affiliated Persons
who acquire more than 50% of the Stockholder Shares held by GTCR as of the date
hereof.
(d) The rights of each Management Stockholder under this Section 1 shall
terminate at such time as such Management Stockholder ceases to hold in the
aggregate at least 20% of the Stockholder Shares held by such Management
Stockholder as of the date hereof.
(e) If any party fails to designate a representative to fill a directorship
pursuant to the terms of this Section 1, the election of an individual to such
directorship shall be accomplished in accordance with the Company's bylaws and
applicable law.
(f) The provisions of this Section 1 and of Section 2 below shall be
effective until the tenth anniversary of the date hereof and shall then
terminate automatically and be of no further force and effect unless extended in
writing by mutual agreement of the parties hereto.
2. IRREVOCABLE PROXY. In order to secure each Management Stockholder's and
each Investor Stockholder's obligation to vote his Stockholder Shares and other
voting securities of the Company in accordance with the provisions of Section 1
hereof, each Management Stockholder hereby appoints GTCR as his true and lawful
proxy and attorney-in-fact, with full power of substitution, to vote all of his
Stockholder Shares and other voting securities of the Company for the election
and/or removal of directors and all such other matters as expressly provided for
in Section 1. GTCR may exercise the irrevocable proxy granted to it hereunder at
any time any Management Stockholder or Investor Stockholder fails to comply with
the provisions of this Agreement. The proxies and powers granted by each
Management Stockholder pursuant to this Section 2 are coupled with an interest
and are given to secure the performance of each Management Stockholder's and
each Investor Stockholder's obligations under this Agreement.
3. REPRESENTATIONS AND WARRANTIES. Each Stockholder represents and warrants
that (a) such Stockholder is the record owner of the number of Stockholder
Shares set forth opposite its name on SCHEDULE III attached hereto, (b) this
Agreement has been duly authorized, executed and delivered by such Stockholder
and constitutes the valid and binding obligation of such Stockholder,
enforceable in accordance with its terms, and (c) such Stockholder has not
granted and is not a party to any proxy, voting trust or other agreement which
is inconsistent with, conflicts with or violates any provision of this
Agreement, other than the Existing Stockholder Agreement, which will be
terminated pursuant to Section 7 hereof. No holder of Stockholder Shares shall
grant any proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
4. RESTRICTIONS ON TRANSFER OF STOCKHOLDER SHARES.
(a) TRANSFER OF STOCKHOLDER SHARES. No Stockholder shall sell, transfer,
assign, pledge or otherwise dispose of (a "TRANSFER") any interest in any
Stockholder Shares, except pursuant to and in accordance with Sections 4(b),
4(c), and 5 below; provided that Section 4(b) shall not apply to GTCR or to the
Investor Stockholders. Each Stockholder agrees not to consummate any Transfer
until at least 30 days after the delivery to the Company and the other holders
of Stockholder Shares of such Stockholder's Sale Notice (as defined below), if
so required by the terms hereof, unless the parties to the Transfer have been
finally determined pursuant to this Section 4 prior to the expiration of such
30-day period (the date of the first to occur of such events is referred to
herein as the "AUTHORIZATION DATE").
(b) FIRST REFUSAL RIGHTS.
(i) Prior to making any Transfer other than pursuant to Section 5, each
Management Stockholder seeking to Transfer any interest in any Stockholder
Shares (a "SELLING STOCKHOLDER"), shall deliver written notice (the "SALE
NOTICE") to the Company and to each other Stockholder. Such Sale Notice shall
disclose in reasonable detail the identity of the prospective transferee(s), the
number of shares to be transferred and the terms and conditions of the proposed
transfer.
(ii) The Company may elect to purchase all (but not less than all) of the
shares specified in the Sale Notice (the "SALE STOCK") upon the same terms and
conditions as those set forth in the Sale Notice by delivering a written notice
of such election to the Selling Stockholder and each of the other Stockholders
within 10 days after the Sale Notice has been delivered to the Company. If the
Company has not elected to purchase all of the Sale Stock within such ten-day
period, GTCR and the other Management Stockholders (the "OTHER STOCKHOLDERS")
may elect to purchase all (but not less than all) of his or its Pro Rata Share
of the Sale Stock specified in the Sale Notice at the price and on the terms
specified therein by delivering written notice of such election to the Selling
Stockholder as soon as practical but in any event within 20 days after delivery
of the Sale Notice. If any portion of Sale Stock is not elected to be purchased
by the end of such 20-day period, the Selling Stockholder shall notify all Other
Stockholders of such fact within 5 days of determination (the "SECOND SALE
NOTICE") and shall offer such remaining shares of Sale Stock to the Other
Stockholders purchasing their Pro Rata Share upon the terms set forth in this
Section, except that such Other Stockholders must notify the Selling Stockholder
of any additional purchase within 5 days of receipt of the Second Sale Notice.
If neither the Company nor the Other Stockholders elect to purchase all of the
shares of Sale Stock, the Selling Stockholder may transfer all of the shares of
Sale Stock, at a price no less than the price per share specified in the Sale
Notice and on terms no more favorable, to the transferee(s) thereof than
specified in the Sale Notice, within the 90-day period immediately following the
Authorization Date. Any shares of Sale Stock not transferred within such 90-day
period shall be subject to the provisions of this Section 4(b) upon subsequent
transfer. If the Company or the Other Stockholders have elected to purchase
shares of Sale Stock hereunder, the Transfer of such shares shall be consummated
as soon as practical after the delivery of notice of such election to the
Selling Stockholder, but in any event within 30 days after the delivery of such
notice of election.
(c) PERMITTED TRANSFERS. Notwithstanding anything to the contrary in any
other provision of this Agreement, the restrictions contained in this Section 4
shall not apply to (i) any Transfer of Stockholder Shares by any Stockholder to
or among any of its Affiliates, (ii) any Transfer of Stockholder Shares by a
Stockholder to another Stockholder, (iii) a Public Sale, (iv) an Approved Sale
(as hereinafter defined), (v) a Transfer of Stockholder Shares by any
Stockholder pursuant to the laws of descent and distribution or among such
Stockholder's Family Group; provided that the restrictions contained in this
Agreement will continue to be applicable to the Stockholder Shares after any
Transfer pursuant to clauses (i), (ii) and (v) above and the transferees of such
Stockholder Shares shall agree in writing to be bound by the provisions of this
Agreement. Upon the Transfer of Stockholder Shares pursuant to this Section
4(c), the transferees will deliver a written notice to the Company, which notice
will disclose in reasonable detail the identity of such transferee.
(d) TERMINATION OF RESTRICTIONS. The restrictions set forth in this Section
4 shall continue with respect to each Stockholder Share until the earlier of (i)
the date on which such Stockholder Share has been transferred in a Public Sale,
(ii) the consummation of an Approved Sale, (iii) the date on which such
Stockholder Share has been transferred pursuant to this Section 4 (other than
Section 4(c)) or (iv) the tenth anniversary of the date hereof.
5. SALE OF THE COMPANY.
(a) If the Board approves a sale of all or substantially all of the
Company's assets determined on a consolidated basis or a sale of all or
substantially all of the Company's outstanding capital stock (whether by merger,
recapitalization, consolidation, reorganization, combination or otherwise) to an
Independent Third Party (collectively an "APPROVED SALE"), each holder of
Stockholder Shares shall consent to and raise no objections against such
Approved Sale. If the Approved Sale is structured as (i) a merger or
consolidation, each holder of Stockholder Shares will waive any dissenters
rights, appraisal rights or similar rights in connection with such merger or
consolidation or (ii) sale of stock, each holder of Stockholder Shares will
agree to sell all of his Stockholder Shares and rights to acquire Stockholder
Shares on the terms and conditions approved by the Board and the holders of a
majority of the Stockholder Shares then outstanding. Each holder of Stockholder
Shares will take all necessary or desirable actions in connection with the
consummation of the Approved Sale as requested by the Company. Notwithstanding
anything to the contrary contained herein, Section 5 shall not be applicable to
the Investor Stockholders (other than Antares).
(b) Notwithstanding anything to the contrary, (i) Antares will only be
required to make representations and warranties as to due power and authority,
non-contravention and ownership of stock, free and clear of all liens, (b)
Antares shall be severally obligated to join on a pro rata basis (based on
Antares' share of the aggregate proceeds paid with respect to its interest) in
any indemnification obligation the other Stockholders have agreed to in
connection with such Approved Sale other than any such obligations that relate
specifically to a particular Stockholder, such as indemnification with respect
to representations and warranties given by a Stockholder regarding such
Stockholder's title to and ownership of stock; provided, however, that Antares
shall not be obligated in connection with such Approved Sale to indemnify the
prospective transferee or its affiliates with respect to an amount in excess of
the net cash proceeds paid to Antares in connection with such Approved Sale
(other than as a result of a breach of its representations and warranties
described in clause (i) above, as to which no limitation shall apply).
(c) The obligations of the Stockholders with respect to an Approved Sale
are subject to the satisfaction of the following conditions: (i) each holder of
shares of a class of stock will be given the same consideration with respect to
each share of such class, and, if any holders of Stockholder Shares are given an
option as to the form and amount of consideration to be received, each holder of
Stockholder Shares will be given the same option and (ii) each holder of then
currently exercisable or convertible rights to acquire shares of Common Stock
will be given an opportunity to exercise such rights or to convert prior to the
consummation of the Approved Sale and participate in such sale as holders of
Common Stock.
(d) If the Company or the holders of the Company's securities enter into
any negotiation or transaction for which Rule 506 under the Securities Act (or
any similar rule then in effect) promulgated by the Securities and Exchange
Commission may be available with respect to such negotiation or transaction
(including a merger, consolidation or other reorganization), the Management
Stockholders, if required under the Securities Act, will, at the request of the
Company, appoint a purchaser representative (as such term is defined in Rule
501) reasonably acceptable to the Company. If any Management Stockholder
appoints a purchaser representative designated by the Company, the Company will
pay the fees of such purchaser representative.
6. LEGEND. Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stockholder Shares as defined herein after such
Transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
TRANSFERS AND VOTING RESTRICTIONS PURSUANT TO STOCKHOLDERS AGREEMENT DATED AS OF
OCTOBER 23, 1996, AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND
CERTAIN OF THE COMPANY'S STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT
WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding prior to the date hereof. The legend set forth above shall be
removed from the certificates evidencing any shares which cease to be
Stockholder Shares in accordance with the definition thereof in Section 8.
7. TERMINATION OF EXISTING STOCKHOLDER AGREEMENT. Each of the Management
Stockholders and the Investor Stockholders (other than Antares) hereby agree and
acknowledge that the certain Stockholder Agreement dated June 22, 1994 (the
"EXISTING STOCKHOLDER AGREEMENT") by and among each of the Management
Stockholders is hereby terminated in its entirety and shall be of no further
force or effect.
8. DEFINITIONS.
"AFFILIATE" of a Stockholder means any other person, entity or investment
fund controlling, controlled by or under common control with the Stockholder
and, in the case of a Stockholder which is a partnership, any partner of the
Stockholder.
"ANTARES" means Antares Leveraged Capital Corp., a Delaware corporation.
"CERTIFICATE OF INCORPORATION" means the Company's certificate of
incorporation in effect at the time as of which any determination is being made.
"COMMON STOCK" means the Common Stock of the Company, par value $.01 per
share.
"COMMON STOCK OUTSTANDING" means at any given time, the number of shares of
Common Stock outstanding at such time, on a fully diluted basis, plus the number
of shares of Common Stock issuable upon the conversion of all Preferred Stock
then outstanding.
"FAMILY GROUP" means a Stockholder's spouse and descendants (whether or not
adopted) and any trust solely for the benefit of the Stockholder and/or the
Stockholder's spouse and/or descendants.
"INDEPENDENT THIRD PARTY" means any Person who, immediately prior to the
contemplated transaction, does not own in excess of 5% of the Company's Common
Stock on a fully-diluted basis (a "5% OWNER"), and who is not controlling,
controlled by or under common control with any such 5% Owner.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"PREFERRED STOCK" means the Company's Series A Convertible Preferred Stock,
par value $.01 per share.
"PRO RATA SHARE" shall mean for any given Stockholder a fraction equal to
the number of Stockholder Shares held by such Stockholder divided by the Common
Stock Outstanding less the Stockholder Shares held by the Selling Stockholder.
"PUBLIC SALE" means any sale of Stockholder Shares to the public pursuant
to an offering registered under the Securities Act or to the public pursuant to
the provisions of Rule 144 adopted under the Securities Act.
"PURCHASE AGREEMENT" means that certain Purchase Agreement dated as of the
date hereof, between the Company, Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P.
and Antares.
"REGISTRATION AGREEMENT" means that certain Registration Agreement dated
the date hereof, between the Company, GTCR and Antares.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"STOCKHOLDER SHARES" means (i) any shares of Common Stock or Preferred
Stock held by any Stockholder; (ii) any shares of Common Stock issued or
issuable upon the conversion of the Preferred Stock held by any Stockholder and
(iii) any equity securities issued or issuable directly or indirectly with
respect to the Common Stock or Preferred Stock referred to in clauses (i) or
(ii) by way of stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization. For
purposes of this Agreement, any Stockholder who holds Preferred Stock shall be
deemed to be the holder of the Stockholder Shares issuable upon conversion of
the Preferred Stock. As to any particular shares constituting Stockholder
Shares, such shares will cease to be Stockholder Shares when they have been (x)
sold pursuant to a Public Sale or (y) repurchased by the Company.
9. TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or attempted Transfer
of any Stockholder Shares in violation of any provision of this Agreement shall
be void, and the Company shall not record such Transfer on its books or treat
any purported transferee of such Stockholder Shares as the owner of such shares
for any purpose.
10. AMENDMENT AND WAIVER. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company and the holders of at
least a majority of the then outstanding Stockholder Shares; provided, however,
that in the event that such amendment or waiver would materially and adversely
affect a holder or group of holders of Stockholder Shares in a manner different
than any other holders of Stockholder Shares, then such amendment or waiver will
require the consent of such holder of Stockholder Shares or a majority of the
Stockholder Shares held by such group of holders materially and adversely
affected. The failure of any party to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
11. SEVERABILITY. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
12. ENTIRE AGREEMENT. Except as otherwise expressly set forth herein, this
document, the Purchase Agreement and the Registration Agreement embody the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
13. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
15. REMEDIES. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this Agreement
and that the Company and any Stockholder shall have the right to injunctive
relief, in addition to all of its rights and remedies at law or in equity, to
enforce the provisions of this Agreement. Nothing contained in this Agreement
shall be construed to confer upon any Person who is not a signatory hereto any
rights or benefits, as a third party beneficiary or otherwise.
16. NOTICES. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or sent by certified mail, return
receipt requested, or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on SCHEDULE III and to any subsequent holder
of Stockholder Shares subject to this Agreement at such address as indicated by
the Company's records, or at such address or to the attention of such other
person as the recipient party has specified by prior written notice to the
sending party. Notices will be deemed to have been given hereunder when
delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Company's address
is:
Esquire Communications Ltd.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No. (000) 000-0000
c/o Chief Executive Officer
with a copy (not to constitute notice to the Company) to:
Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopier No. (000) 000-0000
Attention: Xxxxxx X. Xxxxx
17. GOVERNING LAW. The corporate law of Delaware will govern all issues
concerning the relative rights of the Company and its stockholders. All other
issues concerning this Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the law
of any jurisdiction other than the State of Delaware.
18. NO EFFECT UPON LENDING RELATIONSHIPS. Notwithstanding anything herein
to the contrary, nothing contained in this Agreement shall affect, limit or
impair the rights and remedies of Antares or any other lender in their capacity
as a lender to the Company pursuant to any agreement under which the Company has
borrowed money.
19. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
ESQUIRE COMMUNICATIONS LTD.
By: /s/
Its: Chairman of the Board
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GTCR IV, L.P., General Partner
By: GOLDER, THOMA, CRESSEY,
RAUNER, INC.
Its: General Partner
By: /s/
Its: Principal
/s/
Xxxxxxx Xxxxx
/s/
Xxxxx Xxxxxxx
THE XXXXXXX TRUST
By: /s/
Xxxx X. Xxxxxxx, as Trustee
By: /s/
Xxxxxxxx X. Xxxxxxx, as Trustee
ALLIED INVESTMENT CORPORATION
By: /s/
Its: Vice President
[Continuation of Stockholders Agreement Signature Page]
ALLIED INVESTMENT CORPORATION II
By: /s/
Its: Vice President
ALLIED CAPITAL CORPORATION II
By: /s/
Its: Vice President
CMNY CAPITAL, L.P.
By:
Its: General Partner
By: /s/
Its:
[Continuation of Stockholders Agreement Signature Page]
ANTARES LEVERAGED CAPITAL CORP.
By: /s/
Its: Director
SCHEDULE I
MANAGEMENT STOCKHOLDERS
Xxxxxxx Xxxxx
Xxxxx Xxxxxxx
The Xxxxxxx Trust
SCHEDULE II
INVESTOR STOCKHOLDERS
Allied Investment Corporation
Allied Investment Corporation II
Allied Capital Corporation II
CMNY Capital, L.P.
Antares Leveraged Capital Corp.
SCHEDULE III
NUMBER OF SHARES
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, L.P. 7,312.50 (Preferred Stock)
c/o Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxxxx
Xxxxxxx Xxxxx 555,000 (Common Stock)
000 Xxxx 00xx Xxxxxx, 0xx xxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxx 515,900 (Common Stock)
000 Xxxx 00xx Xxxxxx, 0xx xxxxx
Xxx Xxxx, XX 00000
The Xxxxxxx Trust 750,000 (Common Stock)
c/o Xxxx Xxxxxxx
Xxxxxxx Deposition Service, Inc.
0000 Xxxxx Xxxxxxxx
Xxxxx Xxx, XX 00000
Allied Investment Corporation 625,000 (warrants to purchase
Allied Investment Corporation II Common Stock)
Allied Capital Corporation II
0000 X Xxxxxx, X.X., 0xx xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. XxXxxxx
CMNY Capital, L.P. 472,500 (Common Stock
000 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Antares Leveraged Capital Corp. 187.50 (Preferred Stock)
000 Xxxxx Xxxxxx Xxxxx, xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
