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Exhibit 10.6
EXECUTION COPY
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
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SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT dated as of February 27,
1998, between and among SGH Holdings, Inc., a Delaware corporation (the
"Company"), and each of the stockholders of the Company listed on the Schedule
of Stockholders attached to this Agreement (collectively, the "Stockholders,"
and each individually a "Stockholder.")
The Company and Mesirow Capital Partners VI, an Illinois limited
partnership ("Fund VI"), are parties to a Note and Warrant Purchase Agreement
dated as of October 3, 1994, as amended as of June 12, 1997 (the "Fund VI
Purchase Agreement"), pursuant to which Fund VI purchased certain Promissory
Notes (collectively, the "Fund VI Notes") and Stock Purchase Warrant (the "Fund
VI Warrant") issued by the Company. In connection with the transactions
contemplated by the Fund VI Purchase Agreement, the Company, Fund VI and the
other stockholders of the Company entered into a Stockholders Agreement dated as
of October 3, 1994.
The Company and Mesirow Capital Partners VII, an Illinois limited
partnership ("Fund VII"), are parties to a Note and Warrant Purchase Agreement
dated as of June 12, 1997 (the "Fund VII Purchase Agreement") pursuant to which
Fund VII purchased a Promissory Note (the "Fund VII Note") and a Stock Purchase
Warrant (the "Fund VII Warrant") issued by the Company. In connection with the
transactions contemplated by the Fund VII Purchase Agreement, the Company, Fund
VI, Fund VII and the other stockholders of the Company entered into an Amended
and Restated Stockholders Agreement dated as of June 12, 1997 (the "Existing
Stockholders Agreement").
The Company, Fund VI and Fund VII are parties to an Exchange Agreement
dated as of the date hereof (the "Exchange Agreement") pursuant to which Fund VI
and Fund VII have agreed to exchange the Fund VI Notes and Fund VII Note for
shares of the Company's Redeemable Preferred Stock, par value $.0001 per share.
In order to induce Fund VI and Fund VII to enter into the Exchange Agreement,
the Company has agreed to amend and restate the Existing Stockholders Agreement
in its entirety as set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the consummation of the transactions
contemplated under the Exchange Agreement.
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The Company and the Stockholders desire to enter into this Agreement for
the purposes, among others, of (i) establishing the size and composition of the
Company's Board of Directors (the "Board"), (ii) assuring continuity in the
management and ownership of the Company and (iii) limiting the manner and terms
by which the Company's stock may be transferred.
The parties hereto agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following
terms have the meanings set forth below.
"Affiliate" of a particular Person means any other Person controlling,
controlled by or under common control with such Person, any partner of such
Person and any partner of a Person that is a partnership.
"Approved Sale" has the meaning set forth in Section 6.1.
"Available Shares" has the meaning set forth in Section 5.4.
"Board" has the meaning set forth in the Preamble to this Agreement.
"Bridge Facility Agreement" has the meaning set forth in the Exchange
Agreement.
"Certificate of Incorporation" means the Company's Certificate of
Incorporation, as amended in accordance with the provisions of the Exchange
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Common Stock" means the Common Stock, par value $.0001 per share, of the
Company.
"Company" means SGH Holdings, Inc., a Delaware corporation.
"Credit Agreement" has the meaning set forth in the Exchange Agreement.
"Default" has the meaning set forth in the Credit Agreement.
"Election Period" has the meaning set forth in Section 4.1.
"Event of Default" has the meaning set forth in the Certificate of
Incorporation.
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"Exchange Agreement" has the meaning set forth in the Preamble to this
Agreement.
"Exchange Notes" has the meaning set forth in the Exchange Agreement.
"Executives" means the executive employees of the Company and its
Subsidiaries whose names are set forth on the Schedule of Executives attached to
this Agreement.
"Executive Stock" means (a) all shares of Common Stock held by any
Executive as of the date of this Agreement, (b) all shares of Common Stock
hereinafter acquired by any Executive and (c) any equity securities issued or
issuable with respect to the securities referred to in clause (a) or (b) above
by way of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. For
purposes hereof, all shares of Common Stock and other equity securities held or
acquired by any Person controlled by any Executive (including Xxxxx Enterprises,
L.P.) will be deemed to be held or acquired by such Executive. Shares of Common
Stock deemed to be Executive Stock will continue to be Executive Stock in the
hands of any holder other than an Executive (except for the Company and the
Purchaser and except for transferees in a Public Sale), and, except as otherwise
provided herein, each such other holder of Executive Stock will succeed to all
rights and obligations attributable to the transferring Executive as a holder of
Executive Stock.
"Existing Stockholders Agreement" has the meaning set forth in the Preamble
to this Agreement.
"Fair Market Value" of each share of Executive Stock means the average of
the closing prices of the sales of the Company's Common Stock on all securities
exchanges on which the Common Stock may at the time be listed, or, if there have
been no sales on any such exchange on any day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of such day, or, if on
any day the Common Stock is not so listed, the average of the representative bid
and asked prices quoted in the Nasdaq Stock Market, Inc. as of 4:00 P.M., New
York City time, or, if on any day the Common Stock is not quoted in the Nasdaq
Stock Market, Inc., the average of the highest bid and lowest asked prices on
such day in the domestic over-the-counter market as reported by the National
Quotation Bureau Incorporated, or any similar successor organization, in each
such case averaged over a period of 21 days consisting of the day as of which
the Fair Market Value is being determined and the 20 consecutive business days
prior to such day. If at any time the Common Stock is not listed on any
securities exchange or quoted in the Nasdaq Stock Market, Inc. or
over-the-counter market, the Fair Market Value will be the fair value of the
Common Stock determined in good faith by the Board.
"Family Group" means an Executive's spouse and descendants (whether natural
or adopted) and any trust, partnership or limited liability company (in each
case controlled by the Executive) for the benefit of the Executive or the
Executive's spouse or descendants.
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"Fund VI" means Mesirow Capital Partners VI, an Illinois limited
partnership.
"Fund VI Notes" has the meaning set forth in the Preamble to this
Agreement.
"Fund VI Purchase Agreement" has the meaning set forth in the Preamble to
this Agreement.
"Fund VI Underlying Common Stock" means (a) the Common Stock issued or
issuable upon the exercise of the Fund VI Warrant and (b) any Common Stock
issued or issuable with respect to the Common Stock referred to in clause (a) by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization.
"Fund VI Warrant" has the meaning set forth in the Preamble to this
Agreement.
"Fund VII" means Mesirow Capital Partners VII, an Illinois limited
partnership.
"Fund VII Note" has the meaning set forth in the Preamble to this
Agreement.
"Fund VII Purchase Agreement" has the meaning set forth in the Preamble to
this Agreement.
"Fund VII Underlying Common Stock" means (a) the Common Stock issued or
issuable upon the exercise of the Fund VII Warrant and (b) any Common Stock
issued or issuable with respect to the Common Stock referred to in clause (a) by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization.
"Fund VII Warrant" has the meaning set forth in the Preamble to this
Agreement.
"Independent Third Party" means any Person who, immediately prior to the
contemplated transaction, does not own in excess of 5% of the Company's voting
capital stock on a fully-diluted basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any 5% Owner, and who is not the
spouse or descendent (by birth or adoption) of any 5% Owner.
"Notes" means, collectively, the Fund VI Notes and the Fund VII Note.
"Offer Notice" has the meaning set forth in Section 4.2.
"Option Notice" has the meaning set forth in Section 5.4.
"Other Executives" has the meaning set forth in Section 5.1.
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"Other Stockholders" has the meaning set forth in Section 4.2.
"Permitted Transfer" has the meaning set forth in Section 4.4.
"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.
"Process Agent" has the meaning set forth in Section 8.14.
"Pro Rata Share" has the meaning set forth in Section 4.2.
"Proxy" has the meaning set forth in Section 3.1.
"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 under the Securities Act (or any similar provision
then in force).
"Qualified Public Offering" means the sale in an underwritten public
offering registered under the Securities Act of shares of Common Stock having
an aggregate value, net of underwriting discounts and commissions, of at least
$10 million.
"Registration Agreement" means the Amended and Restated Registration
Agreement dated as of June 12, 1997 between the Company, Fund VI and Fund VII.
"Repurchase Notice" has the meaning set forth in Section 5.3.
"Repurchase Option" has the meaning set forth in Section 5.1.
"Sale of the Company" means the sale of the Company to an Independent
Third Party or affiliated group of Independent Third Parties pursuant to which
such party or parties acquire (a) capital stock of the Company possessing the
voting power to elect a majority of the Board (whether by merger, consolidation
or sale or transfer of the Company's capital stock) or (b) all or substantially
all of the Company's assets determined on a consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Special Committee" has the meaning set forth in Section 2.1(c).
"Stockholder" and "Stockholders" have the meanings set forth in the
Preamble to this Agreement.
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"Stockholder Shares" means (a) the Warrants, (b) any Common Stock held as
of the date of this Agreement by any Stockholder or hereafter purchased or
otherwise acquired by any Stockholder, including Common Stock acquired upon the
exercise of the Warrants, (c) any equity securities issued or issuable directly
or indirectly with respect to the securities referred to in clause (a) or (b)
above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, and (d) any other shares of any class or series of capital stock
of the Company held by a Stockholder. As to any particular shares constituting
Stockholder Shares, such shares will cease to be Stockholder Shares when they
have been disposed of in a Public Sale.
"Stock Option Plan" has the meaning set forth in the Fund VII Purchase
Agreement.
"Sub Board" has the meaning set forth in Section 2.1(d).
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (a) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (b) if a partnership,
limited liability company, association or other business entity, a majority of
the partnership or other similar ownership interests thereof are at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes of this
Agreement, a Person or Persons will be deemed to have a majority ownership
interest in a partnership, limited liability company, association or other
business entity if such Person or Persons are allocated a majority of
partnership, limited liability company, association or other business entity
gains or losses or control the managing director or member or general partner of
such partnership, limited liability company, association or other business
entity.
"Termination" has the meaning set forth in Section 6.1.
"Transfer" has the meaning set forth in Section 4.1.
"Transferring Stockholder" has the meaning set forth in Section 4.2.
"Triggering Event" means the first to occur of (a) the occurrence of an
Event of Default under Section 6.1(b) or Section 6.1(d) of the Certificate of
Incorporation or under Section 4.1(b) or Section 4.1(d) of the Exchange Notes,
(b) the occurrence and continuation for a period of four consecutive fiscal
quarters of an Event of Default arising under Section 6.1(a) of the Certificate
of Incorporation or under Section 4.1(a) of the Exchange Notes, (c) the
occurrence of any Event of Default arising under Section 6.1(c) of the
Certificate of Incorporation or under Section 4.1(c) of the Exchange Notes
resulting from any breach by the Company of the covenant contained in Section
4.6(n) of the Fund VI Purchase Agreement, Fund VII Purchase Agreement or
Exchange Agreement,
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(d) the failure of the Company or any of the Stockholders other than the holders
of the Underlying Common Stock to perform and comply with the covenants and
agreements set forth in Sections 2.1(a), (b)(i), (b)(ii), (e), (f), (g) or (h)
of this Agreement, (e) the occurrence and continuation for a period of at least
60 days after the expiration of any applicable grace period of any Default
arising under the Credit Agreement or any Event of Default arising under the
Certificate of Incorporation or under the Exchange Notes (other than an Event of
Default specified in clause (a), (b) or (c) above) if the event, transaction,
circumstance or occurrence giving rise to such Default or Event of Default has
had or is reasonably likely to have a material adverse effect on the financial
condition, operating results, assets, operations or business prospects of the
Company and its Subsidiaries taken as a whole, (f) the taking of any action by
the Lender to foreclose upon any collateral securing the Company's or any of its
Subsidiary's obligations under the Credit Agreement following delivery of notice
of the acceleration of such obligations, (g) the failure of the Company to pay
the Put Price in full in cash upon the Purchasers' exercise of the Put Right (as
such terms are defined in the Fund VI Purchase Agreement and the Fund VII
Purchase Agreement) or, in connection with any such exercise, to redeem all of
the shares of Preferred Stock then outstanding in accordance with the provisions
of Article 4, Section 4.3 of the Certificate of Incorporation (irrespective of
whether payment of the Put Price or the redemption of the Preferred Stock is
then permitted under the provisions of the Credit Agreement or the Bridge
Financing Agreement) or (h) January 31, 2005.
"Tri-State" means Tri-State Outdoor Media Group, Inc., a Kansas corporation
and a wholly-owned Subsidiary of the Company.
"Underlying Common Stock" means the Fund VI Underlying Common Stock or the
Fund VII Underlying Common Stock, where no distinction is required by the
context in which such term is used. For purposes of this Agreement, any Person
who holds any portion of either of the Warrants will be deemed to be the holder
of the Underlying Common Stock obtainable upon the exercise thereof regardless
of any restriction or limitation on the exercise of such Warrant. As to any
particular shares constituting Underlying Common Stock, such shares will cease
to be Underlying Common Stock when they have been disposed of in a Public Sale.
"Warrants" means, collectively, the Fund VI Warrant and the Fund VII
Warrant.
Unless otherwise stated, other capitalized terms contained herein have the
meanings set forth in the Fund VI Purchase Agreement, Fund VII Purchase
Agreement and Exchange Agreement.
SECTION 2. BOARD OF DIRECTORS AND STOCKHOLDER ACTION.
2.1 BOARD COMPOSITION AND STOCKHOLDER ACTION. From and after the date of
this Agreement and until the provisions of this Section 2 cease to be effective,
each Stockholder will vote all of such Stockholder's Stockholder Shares and any
other voting securities of the Company over which such Stockholder has voting
control and will take all other necessary or desirable actions within such
Stockholder's control (whether in such Stockholder's capacity as a stockholder,
director,
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member of a Board committee, officer of the Company or otherwise, and including
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 will
take all necessary and desirable actions within its control (including calling
special Board and stockholder meetings), so that:
(a) the authorized number of directors comprising the Board will be
established at seven;
(b) subject to Sections 2.1(c) and (d), the following individuals will be
elected to the Board:
(i) one representative designated by the holders of a majority of the
shares of Fund VI Underlying Common Stock;
(ii) two representatives designated by the holders of a majority of
the shares of Fund VII Underlying Common Stock; and
(iii) four representatives designated by the Executives owning a
majority of Stockholder Shares held by all Executives;
(c) notwithstanding Section 2.1(b), (i) immediately upon the occurrence of
any Triggering Event of the type described in clause (a), (b), (f), (g) or (h)
of the definition of such term and (ii) 30 days after the date written notice is
given by Fund VI or Fund VII to the Company stating that a Triggering Event of
the type described in clause (c), (d) or (e) of the definition of such term has
occurred and referring to the provisions of this Section 2.1(c) (provided that
the Default or Event of Default giving rise to such Triggering Event has not
been cured or waived prior to the expiration of such 30-day period), a special
committee of the Board (the "Special Committee") will be designated pursuant to
Section 141(c) of the General Corporation Laws of the State of Delaware,
consisting of one representative designated pursuant to each of Sections
2.1(b)(i), 2.1(b)(ii) and 2.1(b)(iii), to which will be delegated exclusive
authority to pursue, negotiate and recommend to the Board for its approval a
plan or proposal relating to the sale, refinancing or other reorganization of
the Company or one or more of its Subsidiaries (or any assets or properties
thereof);
(d) upon any failure by the Board to designate the Special Committee or to
approve, recommend to the stockholders of the Company or take any other
necessary corporate actions to permit the consummation of any plan or proposal
recommended to the Board by the Special Committee in accordance with Section
2.1(c), the following individuals to be elected to the Board:
(i) two representatives designated by the holders of a majority of
the shares of Fund VI Underlying Common Stock;
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(ii) two representatives designated by the holders of a majority of
the shares of Fund VII Underlying Common Stock; and
(iii) one representative designated by the Executives owning a
majority of the Stockholder Shares held by all Executives;
provided that the provisions of this Section 2.1(d) are intended by the
parties to permit the holders of the Underlying Common Stock to cause the
designation of the Special Committee for the purpose of pursuing and
negotiating a sale, refinancing or other reorganization of the Company or one
or more of its Subsidiaries (or any assets or properties thereof), and to cause
the Board to recommend any plan or proposal relating to any such transaction to
the stockholders of the Company for their approval, and the provisions of this
Section 2.1(d) will cease to be effective, and the provisions of Section 2.1(b)
will again apply, after the Board elected pursuant to this Section 2.1(d) has
caused the Special Committee to be designated or voted on the plan or proposal
recommended to the Board by the Special Committee (subject to the renewal of
the rights provided under this Section 2.1(d) in the event the Board elected
pursuant to Section 2.1(b) takes any action to modify, amend, rescind or
otherwise interfere with or seek to prevent the consummation of any action
authorized or approved by the Board elected pursuant to Section 2.1(d) with
respect to the matters contained in this Section 2.1(d));
(e) the composition of the board of directors of each of the Company's
Subsidiaries (a "Sub Board") will be the same as that of the Board;
(f) except as otherwise provided in Section 2.1(c), the composition of
each committee, if any, of the Board or any Sub Board will be proportionately
equivalent to that of the Board and will include in all cases at least one
representative designated by the holders of a majority of the shares of
Underlying Common Stock;
(g) the removal from the Board or a Sub Board (with or without cause) of
any representative designated hereunder by the holders of the Underlying Common
Stock or by the Executives will be at such holders' or the Executives' written
request, respectively, but only upon such written request and under no other
circumstances;
(h) in the event that any representative designated hereunder by the
holders of the Underlying Common Stock or by the Executives for any reason
ceases to serve as a member of the Board or a Sub Board during his or her term
of office, the resulting vacancy on the Board or the Sub Board will be filled
by a representative designated by the holders of the Underlying Common Stock or
the Executives, respectively, as provided under this Agreement; and
(i) any plan or proposal approved by the Board pursuant to Sections 2.1(c)
and 2.1(d) with respect to any sale, refinancing or reorganization of the
Company or one or more of its
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Subsidiaries (or any assets or properties thereof) will be approved or
ratified by all Stockholders.
2.2 Expenses. The Company will pay the reasonable out-of-pocket
expenses incurred by each director in connection with attending the meetings of
the Board, any Sub Board and any committee thereof.
2.3 Failure to Designate. If any party fails for a period of more
than 30 days after delivery of written notice to designate a representative to
fill a directorship pursuant to the terms of this Section 2, the election of
an individual to such directorship will be accomplished in accordance with the
Company's Bylaws and applicable law.
2.4 Termination. The provisions of this Section 2 will terminate
automatically and be of no further force and effect as of the date the sum of
the number of shares of Underlying Common Stock outstanding and the number of
shares acquirable pursuant to the exercise of the Warrants in full is less than
39 (as adjusted to reflect any stock split, stock dividend, combination of
shares, recapitalization or similar transaction).
Section 3. Irrevocable Proxy; Conflicting Agreements.
3.1 Irrevocable Proxy. In order to secure each Executive's
obligation to vote his or her Stockholder Shares and other voting securities
of the Company in accordance with the provisions of Section 2, each Executive
hereby appoints Xxxxxxx X. Xxxxxx, Xx., (the "Proxy") as his or her true and
lawful proxy and attorney-in-fact, with full power of substitution (which may
be exercised by Xx. Xxxxxx, Fund VI or Fund VII), to vote all of his or her
Stockholder Shares and other voting securities of the Company for the election
and removal of directors and all such other matters as expressly provided for
in Section 2. The Proxy may exercise the irrevocable proxy granted to it
hereunder at any time any Executive fails to comply with the provisions of this
Agreement. The proxies and powers granted by each Executive pursuant to this
Section 3.1 are coupled with an interest and are given to secure the
performance of the Executive's obligations under this Agreement. Such proxies
and powers will be irrevocable for the term set forth in Section 2.4 and will
survive the death, incompetency and disability of such Executive and the
holders of his or her Stockholder Shares.
3.2 Conflicting Agreements. Each Stockholder represents that such
Stockholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with or conflicts with the provisions of
this Agreement, and no holder of Stockholder Shares will grant any proxy or
become party to any voting trust or other agreement which is inconsistent with
or conflicts with the provisions of this Agreement.
Section 4. Restrictions on Transfer of Stockholder Shares.
4.1 Transfer of Stockholder Shares. No Stockholder will sell,
transfer, assign,
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pledge or otherwise dispose of (a "Transfer") any interest in any Stockholder
Shares except pursuant to the provisions of this Section 4. Each Stockholder
agrees not to consummate any Transfer (other than a Permitted Transfer) until
30 days after the delivery to the Company and the other Stockholders of such
Stockholder's Offer Notice 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 "Election Period").
4.2 First Offer Right. At least 30 days prior to making any Transfer of
any Stockholder Shares (other than a Permitted Transfer), the transferring
Stockholder (the "Transferring Stockholder") will deliver a written notice (the
"Offer Notice") to the Company and the other Stockholders (collectively, the
"Other Stockholders"). The Offer Notice will disclose in reasonable detail the
identity of the proposed transferee, the number of Stockholder Shares proposed
to be transferred and the proposed terms and conditions of the Transfer. First,
the Company may elect to purchase all, but not less than all, of the
Stockholder Shares specified in the Offer Notice at the price and on the terms
specified therein by delivering written notice of such election to the
Transferring Stockholder and the Other Stockholders as soon as practical but in
any event within ten days after the delivery of the Offer Notice. If the
Company has not elected to purchase all of the Stockholder Shares within such
ten-day period, each Other Stockholder may elect to purchase all, but not less
than all, of such Stockholder's Pro Rata Share of the Stockholder Shares
specified in the Offer Notice at the price and on the terms specified therein
by delivering written notice of such election to the Transferring Stockholder
as soon as practical but in any event within 20 days after delivery of the
Offer Notice. Any Stockholder Shares not elected to be purchased by the end of
such 20-day period will be deemed to be reoffered for the ten-day period prior
to the expiration of the Election Period by the Transferring Stockholder on a
pro rata basis to the Other Stockholders who have elected to purchase their Pro
Rata Share. If the Company or any Other Stockholders have elected to purchase
Stockholder Shares from the Transferring Stockholder, the transfer of such
shares will be consummated as soon as practical after the delivery of the
election notices, but in any event within 15 days after the expiration of the
Election Period. To the extent that the Company and the Other Stockholders have
not elected to purchase all of the Stockholder Shares being offered, the
Transferring Stockholder may, within 90 days after the expiration of the
Election Period and subject to the provisions of Section 4.3, transfer such
Stockholder Shares to one or more third parties at a price no less than 95% of
the price per share specified in the Offer Notice and on other terms no more
favorable to the transferees than offered to the Company and the Other
Stockholders in the Offer Notice. The purchase price specified in any Offer
Notice will be payable solely in cash at the closing of the transaction or in
installments over time, and no Stockholder Shares may be pledged without the
prior written consent of the Purchaser, which consent may be withheld in the
Purchaser's sole discretion. Each Stockholder's "Pro Rata Share" will be based
upon such Stockholder's proportionate ownership of all Stockholder Shares on a
fully-diluted basis.
4.3 Participation Rights. In the event that the Company and the Other
Stockholders have not elected to purchase the Stockholder Shares specified in
the Offer Notice, the Other Stockholders may elect to participate in the
contemplated Transfer by delivering written notice to the Transferring
Stockholder within 30 days after delivery of the Offer Notice. If any Other
Stockholders have elected to participate in such Transfer, each of the
Transferring Stockholder and
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such Other Stockholders will be entitled to sell in the contemplated Transfer,
at the same price and on the same terms, a number of Stockholder Shares equal
to the product of (a) the quotient determined by dividing the percentage of
Stockholder Shares owned by such Stockholder by the aggregate percentage of
Stockholder Shares owned by the Transferring Stockholder and the Other
Stockholders participating in such sale and (b) the number of Stockholder
Shares to be sold in the contemplated Transfer. Each Transferring Stockholder
will use best efforts to obtain the agreement of the prospective transferee to
the participation of the Other Stockholders in any contemplated Transfer and to
the inclusion (in the case of the Purchaser) of a transfer of Warrant in the
contemplated Transfer, and each Stockholder will not transfer any of such
Stockholder's Stockholder Shares to the prospective transferee if the
prospective transferee declines to allow the participation of the Other
Stockholders or the inclusion of the Warrant.
4.4 Permitted Transfers. The restrictions contained in Sections 4.1
through 4.3 will not apply with respect to any Transfer of Stockholder Shares
by any Stockholder (a) pursuant to a Public Sale, (b) in the case of Fund VI,
among its Affiliates, or to one or more Persons in connection with any sale or
participation of not more than 49 percent of the then outstanding aggregate
principal amount of the Fund VI Notes, (c) in the case of Fund VII, among its
Affiliates, or to one or more Persons in connection with any sale or
participation of not more than 49 percent of the then outstanding aggregate
principal amount of the Fund VII Note, (d) in the case of an Executive,
pursuant to applicable laws of descent and distribution or among such
Executive's Family Group or (e) among the Stockholders; provided that the
restrictions contained in this Section 4 will continue to be applicable to the
Stockholder Shares after any Transfer described in clause (b), (c), (d) or (e)
above and provided further that the transferees of such Stockholder Shares will
agree in writing prior to any such Transfer to be bound by the provisions of
this Agreement affecting the Stockholder Shares so transferred. Transfers of
the type described in clauses (a) through (c) above are referred to herein as
"Permitted Transfers."
4.5 Additional Conditions to Transfer. In connection with the Transfer
of any Stockholder Shares (other than pursuant to a Public Sale or pursuant to
Rule 144A under the Securities Act (or any similar provisions then in force)),
the holder thereof will deliver written notice to the Company describing in
reasonable detail the Transfer or proposed Transfer, together with an opinion
of Jenner & Block or other counsel which to the Company's reasonable
satisfaction is knowledgeable in securities law matters to the effect that such
transfer of Stockholder Shares may be effected without registration of such
Stockholder Shares under the Securities Act. In addition, if the holder of the
Stockholder Shares delivers to the Company an opinion of Jenner & Block or such
other counsel that no subsequent transfer of such Stockholder Shares will
require registration under the Securities Act, the Company will promptly upon
such contemplated Transfer deliver new certificates for such Stockholder Shares
which do not bear the Securities Act legend set forth in Section 4.6. If the
Company is not required to deliver new certificates for such Stockholder Shares
not bearing such legend, the holder thereof will not Transfer the same until
the prospective transferee has confirmed to the Company in writing its
agreement to be bound by the conditions contained in this Section and Section
4.6.
13
4.6 Legend. Each certificate for Stockholder Shares will be imprinted with
a legend in substantially the following form:
"The securities represented by this certificate were originally issued
on 199 , and have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may
not be sold, assigned to otherwise disposed of in violation of the
provisions of the Securities Act. The transfer of the securities
represented by this certificate is subject to the conditions specified
in the Amended and Restated Stockholders Agreement dated as of June
12, 1997, between the issuer (the "Company") and certain of its
stockholders, and the Company reserves the right to refuse the
transfer of such securities until such conditions have been fulfilled
with respect to such transfer. A copy of such conditions will be
furnished by the Company to the holder hereof upon written request
and without charge."
4.7 Termination of Restrictions. The restrictions set forth in Sections
4.1 through 4.4 will continue with respect to each Stockholder Share until the
earlier of (a) the date on which such Stockholder Share has been transferred in
a Public Sale or (b) the consummation of a Qualified Public Offering. All other
restrictions set forth in this Section 4 will continue with respect to each
Stockholder Share until the date on which such Stockholder Share has been
transferred in a Public Sale.
4.8 Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Stockholder Shares in violation of any provision of this
Agreement will be void, and the Company will 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.
Section 5. Repurchase Option.
5.1 Repurchase Option. In the event any Executive ceases to be employed by
the Company or its Subsidiaries for any reason (the "Termination"), such
Executive's Executive Stock (whether held by the Executive or one or more of
the Executive's transferees) will be subject to repurchase by the Company, Fund
VI, Fund VII and the other Executives (collectively, the "Other Executives")
pursuant to the terms and conditions set forth in this Section 5 (the
"Repurchase Option").
5.2 Purchase Price. The purchase price for each share of Executive Stock
will be the Fair Market Value.
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5.3 Exercise of Repurchase Option. The Board may elect to purchase all or
any portion of the Executive Stock of the terminating Executive by delivering
written notice (the "Repurchase Notice") to the holder or holders of such
Executive Stock within 120 days after the Termination. The Repurchase Notice
will set forth the number of shares to be acquired from each holder, the
aggregate consideration to be paid for such shares and the time and place for
the closing of the transaction. The number of shares to be repurchased by the
Company will first be satisfied to the extent possible from the shares of
Executive Stock held by the Executive at the time of delivery of the Repurchase
Notice. If the number of shares of Executive Stock then held by the Executive
is less than the total number of shares of Executive Stock the Company has
elected to purchase, the Company will purchase the remaining shares elected to
be purchased from the other holders of Executive Stock, pro rata according to
the number of shares of Executive Stock held by such other holders at the time
of delivery of the Repurchase Notice (determined as nearly as practicable to
the nearest share).
5.4 Repurchase by Funds and the Other Executives. If for any reason the
Company does not elect to purchase all of the Executive Stock of the terminating
Executive pursuant to the Repurchase Option, Fund VI, Fund VII and the Other
Executives will be entitled to exercise the Repurchase Option for the shares of
Executive Stock the Company has not elected to purchase (the "Available
Shares"). As soon as practicable after the Company has determined that there
will be Available Shares, but in any event within 45 days after the
Termination, the Company will give written notice (the "Option Notice") to Fund
VI, Fund VII and the Other Executives setting forth the number of Available
Shares and the purchase price for the Available Shares. Fund VI, Fund VII and
each of the Other Executives may elect to purchase any or all of the Available
Shares by giving written notice to the Company within 30 days after the Option
Notice has been given by the Company. If Fund VI, Fund VII and the Other
Executives elect to purchase an aggregate number of shares greater than the
number of Available Shares, the Available Shares will be allocated among Fund
VI, Fund VII and the Other Executives based upon the number of shares of Common
Stock held by each such Person on a fully-diluted basis.
5.5 Closing. The closing of the purchase of the Executive Stock pursuant
to the Repurchase Option will take place on the date designated by the Company
in the Repurchase Notice, which date will not be more than 60 days nor less
than five days after the delivery of such notice. The Company, Fund VI, Fund
VII and the Other Executives, as applicable, will pay for the Executive Stock
to be purchased pursuant to the Repurchase Option by delivery of, in the case
of Fund VI, Fund VII and the Other Executives, a check or wire transfer of
funds and, in the case of the Company, (a) a check or wire transfer of funds,
(b) a subordinate note or notes payable in up to three equal annual
installments beginning on the first anniversary of the closing of such purchase
and bearing interest (payable quarterly) at a rate per annum equal to the prime
rate announced from time to time by The First National Bank of Chicago, N.A. or
(c) both (a) and (b), in the aggregate amount of the purchase price for such
shares. Any notes issued by the Company pursuant to this Section 5.5 will be
subject to any restrictive covenants to which the Company is subject at the
time of such purchase. In addition, the Company may pay the purchase price for
such shares by offsetting any bona fide debts owed by the terminating Executive
to the Company. The purchasers of
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Executive Stock hereunder will be entitled to receive customary representations
and warranties from the sellers regarding such sale and to require all sellers'
signatures be guaranteed.
5.6 Repurchase Restricted. Notwithstanding anything to the contrary
contained in this Agreement, all repurchases of Executive Stock by the Company
will be subject to applicable restrictions contained in the Delaware General
Corporation Law and in the Company's and its Subsidiaries' debt and equity
financing agreements. If any such restrictions prohibit the repurchase of
Executive Stock hereunder which the Company is otherwise entitled to make, the
Company may make such repurchases as soon as it is permitted to do so under such
restrictions.
5.7 Repurchase of Certain Shares. Notwithstanding the provisions of
Sections 5.3 and 5.4, in the event of the exercise of the Repurchase Option (a)
with respect to any shares of Executive Stock held by Xxxxxxx X. XxXxxxxx,
Xxxxxxx XxXxxxx, Xxxxxx X. Xxxx or any of their respective transferees, Xxxxxxx
X. Xxxxx will have the first right to exercise the Repurchase Option and Fund
VI, Fund VII and each of the Other Executives will then have the right to
repurchase in accordance with the provisions of Section 5.4 any shares not
repurchased by Xxxxxxx X. Xxxxx and (b) with respect to any shares of Executive
Stock held by Xxxxxxx X. Xxxxx or any of his transferees, the Other Executives
will have the first right to exercise the Repurchase Option and Fund VI and Fund
VII will then have the right to repurchase in accordance with the provisions of
Section 5.4 any shares not repurchased by the Other Executives.
5.8 Termination. The right of the Company, Fund VI, Fund VII and the
Other Executives to repurchase shares of Executive Stock pursuant to this
Section 5 will terminate upon the first to occur of the Sale of the Company or a
Qualified Public Offering.
Section 6. Sale of the Company.
6.1 Approved Sale. If the Board and the holders of a majority of the
Company's outstanding Common Stock approve a Sale of the Company (the "Approved
Sale"), the holders of Executive Stock will consent to and raise no objections
against the Approved Sale of the Company, and if the Approved Sale of the
Company is structured as a sale of stock, the holders of Executive Stock will
agree to sell their shares of Executive Stock on the terms and conditions
approved by the Board and the holders of a majority of the Company's Common
Stock. The holders of Executive Stock will take all necessary and desirable
actions in connection with the consummation of the Approved Sale of the Company.
6.2 Conditions. The obligations of the holders of Executive Stock with
respect to the Approved Sale of the Company are subject to the conditions that
(a) upon the consummation of the Approved Sale, all of the holders of Common
Stock will receive the same form and amount of consideration per share of Common
Stock, or if any holders of Common Stock are given an option as to the form and
amount of consideration to be received, all holders will be given the same
option, and (b) all holders of then currently exercisable rights to acquire
shares of Common Stock will be given an opportunity either to (i) exercise such
rights prior to the consummation of the Approved
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Sale and participate in such sale as holders of Common Stock or (ii) upon the
consummation of the Approved Sale, receive in exchange for such rights
consideration equal to the amount determined by multiplying (A) the same amount
of consideration per share of Common Stock received by the holders of Common
Stock in connection with the Approved Sale less the exercise price per share of
Common Stock of such rights to acquire Common Stock by (B) the number of shares
of Common Stock represented by such rights.
6.3 Rule 506 Transactions. If the Company or the holders of the Company's
securities enter into any negotiation or transaction for which Rule 506 (or any
similar rule then in effect) under the Securities Act may be available with
respect to such negotiation or transaction (including a merger, consolidation or
other reorganization), the holders of Executive Stock will, at the request of
the Company, appoint a purchaser representative (as such term is defined in Rule
501 under the Securities Act) reasonably acceptable to the Company. If any
holder of Executive Stock appoints a purchaser representative designated by the
Company, the Company will pay the fees of such purchaser representative, but if
any holder of Executive Stock declines to appoint the purchaser representative
designated by the Company, such holder will appoint another purchaser
representative reasonably acceptable to the Company, and such holder will be
responsible for the fees of the purchaser representative so appointed.
6.4 Expenses. The Executives and the other holders of Stockholder Shares
will bear their pro-rata share (based upon the number of shares sold) of the
costs of any sale of Stockholder Shares pursuant to an Approved Sale to the
extent such costs are incurred for the benefit of all holders of Common Stock
and are not otherwise paid by the Company or the acquiring party. Costs
incurred by the Executives and the other holders of Executive Stock on their
own behalf will not be considered costs of the transaction hereunder.
6.5 Termination. The provisions of this Section 6 will terminate upon
the completion of a Qualified Public Offering.
Section 7. Tax Matters.
7.1 Allocation of Taxable Income. Pursuant to the Fund VI Purchase
Agreement, the Company and each of the Executives consented to the making of an
election by Tri-State pursuant to Section 1362(c)(3) of the Code to close its
taxable year as of the date of the Fund VI Purchase Agreement and to allocate
specifically to the period commencing January 1, 1994 and ending on the date of
the Fund VI Purchase Agreement all items of income, loss, deduction or credit
attributable to such period and further consented to the making by Tri-State of
any similar elections pursuant to applicable state, local or foreign law.
7.2 Tax Indemnity. In the event that it is determined by any tax
authority that Tri-State was for any reason not eligible to be treated as an S
corporation as defined in Section 1361(a) of the Code with respect to any
taxable period prior to the date of the Fund VI Purchase Agreement, then each
of the Executives, upon the request of the Company, Fund VI or Fund VII, will
promptly,
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and in any event within 30 days after the date of such determination, file
amended federal, state and local income tax returns for each year for which such
amendments may be filed and for which a refund will be due to the Executive and
will at the Executive's expense use best efforts to obtain the maximum tax
refund to which the Executive may be entitled as a result of such
determination. Upon obtaining any such refund, each Executive will promptly,
and in any event within 10 days after the date of the Executive's receipt
thereof, contribute that portion of such refund that does not exceed the tax
owed by the Company for the redetermined years, or all of such refund if such
tax exceeds such refund, to the Company in the form of a capital contribution
with respect to such Executive's Stockholder Shares.
Section 8. Holdback Agreement. Each holder of Stockholder Shares agrees
not to effect any public sale or distribution (including sales pursuant to Rule
144 under the Securities Act) of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and the 180-day period beginning on the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (in each case as defined in the Registration Agreement)
in which Stockholder Shares are included (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
Section 9. Miscellaneous.
9.1 Remedies. Each holder of Stockholder Shares will have all rights and
remedies set forth in this Agreement and the Company's Certificate of
Incorporation, all rights and remedies which such holders have been granted at
any time under any other agreement or contract and all of the rights which such
holders have under any law. Any Person having any rights under any provision of
this Agreement will be entitled to enforce such rights specifically, without
posting a bond or other security, to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law.
9.2 Consent to Amendments. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement will be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company, the holders of a
majority of the Fund VI Underlying Common Stock, the holders of a majority of
the Fund VII Underlying Common Stock and the holders of a majority of the
Stockholders Shares, respectively. The failure of any party to enforce any of
the provisions of this Agreement will in no way be construed as a waiver of
such provisions and will not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
9.3 Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith will survive the execution and delivery of this Agreement, regardless
of any investigation made by any party.
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9.4 Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for any Stockholder's benefit as a
purchaser or holder of Stockholder Shares are also for the benefit of, and
enforceable by, any subsequent holder of such Stockholders Shares.
9.5 Severability. Whenever possible, each provision of this Agreement
will 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 prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
9.6 Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one
and the same Agreement.
9.7 Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
9.8 Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally to the
recipient, one business day after the date when sent to the recipient by
reputable express courier service (charges prepaid) or three business days
after the date when mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to the Company and the Stockholders at the
addresses indicated below:
If to the Company:
SGH Holdings, Inc.
c/o Tri-State Outdoor Media Group, Inc.
0000 Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx, President
With a copy (which will not constitute notice) to:
St. Xxxx & Xxxxx, L.L.C.
0 Xxxx Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
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If to a Stockholder:
To the addresses set forth on the Schedule of
Stockholders attached to this Agreement
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
9.9 No Third-Party Beneficiaries. This Agreement will not confer
any rights or remedies upon any Person than the Company and the Stockholders
and their respective successors and permitted assigns.
9.10 Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements (including the Existing
Stockholders Agreement) or representations by or among the parties, written or
oral, that may have related in any way to the subject matter hereof.
9.11 Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party. Any
reference to any federal, state, local, or foreign statute or law will be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. The use of the word "including" in this Agreement
means "including without limitation" and is intended by the parties to be by way
of example rather than limitation.
9.12 Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
9.13 GOVERNING LAW. THE CORPORATE LAW OF THE STATE OF DELAWARE WILL
GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO WILL BE
GOVERNED BY THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF
ILLINOIS.
9.14 Submission to Jurisdiction. Each of the parties to this
Agreement submits to the jurisdiction of any state or federal court sitting in
Chicago, Illinois, in any action or proceeding arising out of or relating to
this Agreement, agrees that all claims in respect of the action or proceeding
may be heard and determined in any such court, and agrees not to bring any
action or proceeding arising out of or relating to this Agreement in any other
court. Each of the parties to this Agreement waives any defense of inconvenient
forum to be maintenance of any action or proceeding so brought and waives any
bond, surety, or other security that might be required of any other party with
respect thereto. Each party to this Agreement appoints CT Corporation (the
"Process Agent") as its agent to receive on its behalf service of copies of the
summons and complaint and any other
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process that might be served in the action or proceeding. Any party to this
Agreement may make service on any other party by sending or delivering a copy of
the process (a) to the party to be served at the address and in the manner
provided for the giving of notices in Section 9.8 or (b) to the party to be
served in care of the Process Agent at the address and in the manner provided
for the giving of notices in Section 9.8. Nothing in this Section, however, will
affect the right of any party to serve legal process in any other manner
permitted by law. Each party agrees that a final judgment in any action or
proceeding so brought will be conclusive and may be enforced by suit on the
judgment or in any other manner provided by law.
*****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
SGH Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxx
______________________________
Name: Xxxxxxx X. Xxxxx
Title: President
MESIROW CAPITAL PARTNERS VI
By Mesirow Financial Services, Inc.
Its General Partner
By /s/ X. X. Xxxxxx
_______________________________
Its Vice President
______________________________
MESIROW CAPITAL PARTNERS VII
By Mesirow Financial Services, Inc.
Its General Partner
By /s/ X. X. Xxxxxx
______________________________
Its Vice President
______________________________
XXXXX ENTERPRISES, L.P.
/s/ Xxxxxxx X. Xxxxx
_________________________________
Xxxxxxx X. Xxxxx
General Partner
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/s/ Xxxxxx Xxxxx
________________________________
Xxxxxx Xxxxx
General Partner
/s/ Xxxxxxx XxXxxxx
________________________________
Xxxxxxx XxXxxxx
/s/ Xxxxxxx X. XxXxxxxx
________________________________
Xxxxxxx X. XxXxxxxx
/s/ Xxxxxx X. Xxxx
________________________________
Xxxxxx X. Xxxx
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SCHEDULE OF STOCKHOLDERS
Issued and Outstanding Shares*
------------------------------
Name of Stockholder Number of Shares Owned Percentage Ownership
------------------------ ---------------------- --------------------
Xxxxx Enterprises, L.P. 844.072 82.72%
------------------------------------------------------------------------------------------
Xxxxxxx X. XxXxxxxx 110.028 10.78%
------------------------------------------------------------------------------------------
Xxxxxx X. Xxxx 45.9 4.5%
------------------------------------------------------------------------------------------
Xxxxxxx XxXxxxx 20.4 2.0%
------------------------------------------------------------------------------------------
Total 1,020.4 100%
------------------------------------------------------------------------------------------
----------
* Indicates issued and outstanding shares of Common Stock as of the date of
this Agreement without taking into account shares issuable upon the exercise
of the Warrants.
Fully Diluted Shares**
----------------------
Name of Stockholder Number of Shares Owned Percentage Ownership
------------------------ ---------------------- --------------------
Xxxxx Enterprises, L.P. 722.3849 33.73%
------------------------------------------------------------------------------------------
Xxxxxxx X. XxXxxxxx 180.9176 8.45%
------------------------------------------------------------------------------------------
Xxxxxx X. Xxxx 96.3675 4.5%
------------------------------------------------------------------------------------------
Xxxxxxx XxXxxxx 42.83 2.0%
------------------------------------------------------------------------------------------
Mesirow Capital Partners VI
Mesirow Capital Partners VII 1.099 51.32%
------------------------------------------------------------------------------------------
Total 2,141.5 100%
------------------------------------------------------------------------------------------
----------
** Indicates issued and outstanding shares of Common Stock after taking into
account the issuance of shares pursuant to the exercise of the Warrants
(assuming the issuance of maximum number of shares issuable pursuant to the
Warrants) and the consummation of share transfers among the Executives
provided for in certain agreements among the Executives.
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SCHEDULE OF EXECUTIVES
----------------------
Xxxxxxx X. Xxxxx
Xxxxxxx X. XxXxxxxx
Xxxxxx X. Xxxx
Xxxxxxx XxXxxxx
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