EXHIBIT 10.7
EXECUTION VERSION
STOCKHOLDERS AGREEMENT
BY AND AMONG
CSA ACQUISITION CORP.
AND
THE STOCKHOLDERS NAMED HEREIN
DATED AS OF DECEMBER 23, 2004
TABLE OF CONTENTS
Page
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RECITALS....................................................................................... 1
ARTICLE I DEFINITIONS.......................................................................... 2
SECTION 1.1. Defined Terms................................................................. 2
SECTION 1.2. Other Definitional Provisions................................................. 10
ARTICLE II CORPORATE GOVERNANCE................................................................ 11
SECTION 2.1. Board Representation.......................................................... 11
SECTION 2.2. Committees.................................................................... 12
SECTION 2.3. Consent Rights................................................................ 12
SECTION 2.4. Available Financial Information............................................... 14
SECTION 2.5. Access........................................................................ 14
SECTION 2.6. Termination and Modification of Rights........................................ 15
SECTION 2.7. VCOC.......................................................................... 16
ARTICLE III TRANSFERS.......................................................................... 16
SECTION 3.1. Rights and Obligations of Transferees......................................... 16
SECTION 3.2. Transfer Restrictions......................................................... 16
SECTION 3.3. Right of First Offer with Respect to Sponsor Stockholders..................... 17
SECTION 3.4. Right of Co-Sale on Transfers by Stockholders................................. 19
SECTION 3.5. Drag Along Rights............................................................. 20
SECTION 3.6. Right of First Refusal With Respect to Management Stockholders and Director
Stockholders............................................................... 21
SECTION 3.7. Management Call Option........................................................ 23
SECTION 3.8. Registration Rights........................................................... 26
SECTION 3.9. Void Transfers................................................................ 26
ARTICLE IV EQUITY PURCHASE RIGHTS.............................................................. 26
SECTION 4.1. Equity Purchase Rights........................................................ 26
ARTICLE V MISCELLANEOUS........................................................................ 28
SECTION 5.1. Reimbursement of Expenses..................................................... 28
SECTION 5.2. Fiduciary Duties.............................................................. 28
SECTION 5.3. No Inconsistent Agreements.................................................... 29
SECTION 5.4. Recapitalization, Exchanges, etc.............................................. 29
SECTION 5.5. Employment by the Company..................................................... 29
SECTION 5.6. Taxes......................................................................... 29
SECTION 5.7. Term of Agreement............................................................. 29
SECTION 5.8. Inspection.................................................................... 30
SECTION 5.9. Amendments and Waivers........................................................ 30
SECTION 5.10. Successors, Assigns and Transferees........................................... 30
SECTION 5.11. Legend........................................................................ 30
SECTION 5.12. Notices....................................................................... 31
SECTION 5.13. Further Assurances............................................................ 33
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SECTION 5.14. Entire Agreement.............................................................. 33
SECTION 5.15. Confidentiality............................................................... 33
SECTION 5.16. Optionholders to become Parties............................................... 33
SECTION 5.17. Delays or Omissions........................................................... 33
SECTION 5.18. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL............................. 34
SECTION 5.19. Effective Date................................................................ 34
SECTION 5.20. Severability.................................................................. 34
SECTION 5.21. Specific Performance.......................................................... 34
SECTION 5.22. Counterparts; Facsimile Signatures............................................ 35
ANNEX I
ANNEX II
EXHIBITS
Exhibit A Form of Assignment and Assumption Agreement
-ii-
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of December 23, 2004 (this
"Agreement"), by and among CSA Acquisition Corp., a Delaware corporation (the
"Company"), Cypress Merchant Banking Partners II L.P., a Delaware limited
partnership ("Cypress Onshore"), Cypress Merchant B II C.V., a limited
partnership formed under the laws of The Netherlands ("Cypress Offshore"), 55th
Street Partners II L.P., a Delaware limited partnership ("55th Street"), Cypress
Side-By-Side LLC, a Delaware limited liability company ("Side-by-Side" and,
together with Cypress Onshore, Cypress Offshore and 55th Street, "Cypress"), GS
Capital Partners 2000, L.P. ("Goldman Onshore"), GS Capital Partners 2000
Offshore, L.P. ("Goldman Offshore"), GS Capital Partners 2000 GmbH & Co.
Beteiligungs KG ("Goldman KG"), GS Capital Partners 2000 Employee Fund, L.P.
("Goldman Employee") and Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P.
("Goldman Direct" and, together with Goldman Onshore, Goldman Offshore, Goldman
KG and Goldman Employee, "Goldman"; Goldman and Cypress are referred to herein
as the "Sponsor Stockholders"), the persons listed on Annex I hereto (the
"Management Stockholders") and on Annex II hereto (the "Director Stockholders")
(the Sponsor Stockholders, Management Stockholders and Director Stockholders,
collectively, the "Stockholders").
RECITALS
WHEREAS, the Company has entered into that certain Stock Purchase
Agreement, dated as of September 16, 2004, as amended as of December 3, 2004
(the "Purchase Agreement"), by and among Xxxxxx Tire & Rubber Company, a
Delaware corporation ("Cooper"), Xxxxxx Tyre & Rubber Company UK Limited, a
company organized under the laws of England and Wales (together with Cooper, the
"Sellers") and the Company, pursuant to which the Company will purchase equity
interests held by the Sellers in the Sold Companies (as defined in the Purchase
Agreement);
WHEREAS, on September 16, 2004, the Company entered into a letter
agreement with Cypress and Goldman, pursuant to which Cypress and Goldman each
agreed to contribute $159,000,000, for a total of $318,000,000, in consideration
for shares of the Common Stock of the Company;
WHEREAS, on September 16, 2004, Cypress and Goldman entered into
letter agreements with the Management Stockholders, pursuant to which each
Management Stockholder agreed to acquire shares of the Common Stock of the
Company, subject to certain conditions; and
WHEREAS, each of the Stockholders desires to promote the interests of
the Company and the mutual interests of Stockholders by establishing herein
certain terms and conditions upon which the shares of Common Stock owned by them
will be held, including provisions restricting the transfer of shares of Common
Stock, and providing for certain other matters.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual promises hereinafter set forth, the Company and the Stockholders hereby
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Defined Terms. As used herein, the following terms shall
have the following meanings:
"55th Street" has the meaning assigned to such term in the Preamble.
"Acceptance Notice" has the meaning assigned to such term in Section
3.3(b).
"Affiliate" means, with respect to any Person, (i) any Person directly
or indirectly controlling, controlled by or under common control with such
Person or (ii) any Person directly or indirectly owning or controlling ten
percent (10%) or more of any class of outstanding equity securities of such
Person.
"Agreement" has the meaning assigned to such term in the Preamble.
"beneficial owner" or "beneficially own" has the meaning given such
term in Rule 13d-3 under the Exchange Act and a Person's beneficial ownership of
Common Stock or other Voting Securities of the Company shall be calculated in
accordance with the provisions of such Rule; provided, however, that for
purposes of determining beneficial ownership, (i) a Person shall be deemed to be
the beneficial owner of any security which may be acquired by such Person,
whether within sixty (60) days or thereafter, upon the conversion, exchange or
exercise of any warrants, options, rights or other securities and (ii) no Person
shall be deemed to beneficially own any security solely as a result of such
Person's execution of this Agreement.
"Board" means the Board of Directors of the Company.
"Business Day" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by law to be closed in the City of
New York.
"Bylaws" means the Bylaws of the Company, as in effect on the date
hereof and as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof, the terms of the Charter and
the terms of this Agreement.
"Cause" shall mean "Cause" as defined in any employment agreement
between a Management Stockholder and the Company as in effect on the date of the
applicable Termination Event, or, if there shall be no such agreement or if such
term is not defined therein, (i) the Management Stockholder's willful failure to
perform duties or directives which is not cured following written notice, (ii)
the Management Stockholder's commission of a (A) felony or (B) crime involving
moral turpitude, (iii) the Management Stockholder's willful malfeasance or
misconduct which is demonstrably injurious to the Company, or (iv) material
breach by the Management Stockholder of the restrictive covenants, including,
without limitation, any non-compete, non-solicitation or confidentiality
provisions to which executive is bound.
"CEO Designee" has the meaning assigned to such term in Section
2.1(a)(ii).
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"Change of Control" means the occurrence of any of the following
events after the Effective Date: (i) the sale or disposition, in one or a series
of related transactions, of all or substantially all of the assets of the
Company to any "person" or "group" (as such terms are defined in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) other than the Permitted Holders or
(ii) any person or group, other than the Permitted Holders, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of greater than or equal to fifty percent (50%) of the
total voting power of the Voting Securities of the Company, including by way of
merger, consolidation or otherwise, except where the Sponsor Stockholders or
their Affiliates, immediately following such merger, consolidation or other
transaction, continue to have the ability to designate or elect a majority of
the Board (or the board of directors of the resulting entity or its parent
company).
"Charter" means the Amended and Restated Certificate of Incorporation
of the Company, as in effect on the date hereof and as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and the terms of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
as the context requires, the Treasury regulations promulgated thereunder.
"Common Stock" means the common stock, par value $0.01 per share, of
the Company, whether first owned prior to, on or following the date hereof
(including shares acquired upon exercise of options, warrants or other rights to
acquire such shares), and any securities issued in respect thereof, or in
substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger, consolidation,
exchange or other similar reorganization.
"Company" has the meaning assigned to such term in the Preamble.
"Company Competitor" means any Person that is primarily engaged,
directly or indirectly, in the design, manufacture and sale of fluid handling
systems, body sealing systems and active and passive vibration control systems
or otherwise directly or indirectly competes with the business of the Company
and its Subsidiaries.
"Confidential Information" has the meaning assigned to such term in
Section 5.15(c).
"control" (including the terms "controlled by" and "under common
control with"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly, of the power to direct or
cause the direction of the affairs or management of a Person, whether through
the ownership of voting securities, as trustee or executor, by contract or
otherwise.
"Xxxxxx" has the meaning assigned to such term in the Recitals.
"Co-Sale Participant" has the meaning assigned to such term in Section
3.4(a).
"Cypress" has the meaning assigned to such term in the Preamble.
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"Cypress Offshore" has the meaning assigned to such term in the
Preamble.
"Cypress Onshore" has the meaning assigned to such term in the
Preamble.
"Cypress Designee" has the meaning assigned to such term in Section
2.1(a)(i).
"Cypress Member" means each of Cypress Onshore, Cypress Offshore, 00xx
Xxxxxx and Side-by-Side and their Permitted Transferees.
"Delaware Law" means the Delaware General Corporation Law, as amended
from time to time.
"Director" means any member of the Board.
"Director Stockholders" has the meaning assigned to such term in the
Preamble.
"Drag Along Notice" has the meaning assigned to such term in Section
3.5(d).
"Drag Securities" has the meaning assigned to such term in Section
3.5(a).
"Drag Transaction" has the meaning assigned to such term in Section
3.5(b).
"Effective Date" has the meaning assigned to such term in Section
5.19.
"Eligible Shares" has the meaning assigned to such term in Section
3.7(c).
"Equity Purchase Right" has the meaning assigned to such term in
Section 4.1(a).
"Equity Purchase Shares" has the meaning assigned to such term in
Section 4.1(a).
"Equity Securities" means any and all shares of Common Stock or other
equity securities of the Company, securities of the Company convertible into, or
exchangeable or exercisable for, such shares or other securities, and options,
warrants or other rights to acquire such shares or other securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Exercising Stockholder" has the meaning assigned to such term in
Section 4.1(d).
"Fair Market Value" means (i) with respect to Common Stock (a) if
there is a public market for the shares on such date, the average of the high
and low closing bid prices of the shares of Common Stock as reported on such
date on the Composite Tape of the principal national securities exchange on
which such shares are listed or admitted to trading, or, if the shares are not
listed or admitted on any national securities exchange, the arithmetic mean of
the per share closing bid price and per share closing asked price on such date
as quoted on the National Association of Securities Dealers Automated Quotation
System (or such market in
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which such prices are regularly quoted), or, if no sale of shares shall have
been reported on the Composite Tape of any national securities exchange or
quoted on the National Association of Securities Dealers Automated Quotation
System (or such market in which such prices are regularly quoted) on such date,
on the closest preceding date on which there were sales of shares or (b) if
there is no public market for the shares on such date, the fair market value of
the shares will be as determined in good faith by the Board and (ii) with
respect to any other non-cash consideration, the fair market value of such
non-cash consideration as determined in good faith by the Board.
"Family Group," with respect to any natural person, means such natural
person's spouse and descendants (whether natural or adopted) and any trust
solely for the benefit of such natural person and/or such natural person's
spouse and/or descendants.
"Financing Default" means an event which would constitute (or with
notice or lapse of time or both would constitute) an event of default (which
event of default has not been cured) under or would otherwise violate or breach
any financing arrangement of the Company or any of its Subsidiaries in effect as
of the time of the aforementioned event, and any extensions, renewals,
refinancings or refundings thereof in whole or in part.
"First Offer" has the meaning assigned to such term in Section 3.3(b).
"First Offer Price" has the meaning assigned to such term in Section
3.3(a).
"First Purchase Date" has the meaning assigned to such term in Section
3.7(a).
"Goldman" has the meaning assigned to such term in the Preamble.
"Goldman Direct" has the meaning assigned to such term in the
Preamble.
"Goldman Designee" has the meaning assigned to such term in Section
2.1(a)(i).
"Goldman Employee" has the meaning assigned to such term in the
Preamble.
"Goldman KG" has the meaning assigned to such term in the Preamble.
"Goldman Member" means Goldman Onshore, Goldman Offshore, Goldman KG,
Goldman Employee and Goldman Direct and their Permitted Transferees.
"Goldman Offshore" has the meaning assigned to such term in the
Preamble.
"Goldman Onshore" has the meaning assigned to such term in the
Preamble.
"Goldman Voting Securities" shall mean all shares of Common Stock or
Voting Securities which are owned or held by Goldman or its Permitted
Transferees.
"Governmental Body" means any government or governmental or regulatory
body thereof, or political subdivision thereof, of any country or subdivision
thereof, whether international, supranational, national, federal, state or
local, or any agency or instrumentality
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thereof, or any court or regulatory (including a stock exchange or other
self-regulatory body) authority or agency.
"IPO" means the initial public offering of Common Stock pursuant to an
effective registration statement under the Securities Act.
"Issuance Notice" has the meaning assigned to such term in Section
4.1(b).
"Lapse Date" has the meaning assigned to such term in Section
3.2(b)(i).
"Law" means any statute, law, regulation, ordinance, rule, injunction,
order, decree, governmental approval, directive, requirement, or other
governmental restriction or any similar form of decision of, or determination
by, or any interpretation or administration of any of the foregoing by, any
Governmental Body.
"Management Offer" has the meaning assigned to such term in Section
3.6(a).
"Management Offer Notice" has the meaning assigned to such term in
Section 3.6(a).
"Management Offeror" has the meaning assigned to such term in Section
3.6(a).
"Management Stockholder" has the meaning set forth in the Preamble.
"Non-Purchasing Stockholder" has the meaning assigned to such term in
Section 4.1(d).
"Offer Notice" has the meaning assigned to such term in Section
3.3(a).
"Offered Management Securities" has the meaning assigned to such term
in Section 3.6(a).
"Offered Securities" has the meaning assigned to such term in Section
3.3(a).
"Offering Holder" has the meaning assigned to such term in Section
3.3(a).
"Optionholder" has the meaning assigned to such term in Section 5.16.
"Original Shares" shall mean, when used in reference to any
Stockholder, the shares of Common Stock sold to such Stockholder on or prior to
the Effective Date or any shares or other securities which such shares of Common
Stock may have been converted into or exchanged for in connection with any
exchange, reclassification, dividend, distribution, stock split, combination,
subdivision, merger, spin-off, recapitalization, reorganization or similar
transaction.
"Original Subscription Agreements" is a collective reference to the
Subscription Agreements to be entered into by the Company with each of the
Stockholders on or before the Effective Date providing in each case for the
purchase by, or issuance to, such Stockholder of shares of Common Stock: (i) on
or prior to the Effective Date, in the case of the Sponsor
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Stockholders; (ii) on or before the 20th day following receipt of each related
Bonus Payment (as defined in the Original Subscription Agreements for the
Management Stockholders), in the case of the Management Stockholders, and in the
case of Xxxxx X. XxXxxx, on the Effective Date; and (iii) on or before March 23,
2005, in the case of the Director Stockholders.
"Permitted Holder" means, as of the date of determination, any and all
of (i) an employee benefit plan (or trust forming a part thereof) maintained by
(a) the Company or (b) any corporation or other Person of which a majority of
its voting power of its voting equity securities or equity interest is owned,
directly or indirectly, by the Company and (ii) the Sponsor Stockholders and any
of their respective Affiliates.
"Permitted Transferee" shall mean (i) in the case of a natural person,
any individual who received a Stockholder's share of Common Stock pursuant to
applicable Laws of descent and distribution or any individual who is a member of
such Stockholder's Family Group; (ii) in the case of each Cypress Member (A) any
other Cypress Member or any Affiliate (other than an individual) of Cypress
Associates II LLC or any of its managing members; (B) any general or limited
partner, member, director, officer or employee of such Cypress Member (or other
entity referred to in clause (A)); (C) the heirs, executors, administrators,
testamentary trustees, legatees or beneficiaries of any of the individuals
referred to in clause (B); (D) for estate planning purposes, any trust, the
beneficiaries of which include only (1) Permitted Transferees referred to in
clauses (A), (B) and (C) and (2) parents, spouses and lineal descendants of
Permitted Transferees referred to in clause (B); (E) a corporation, partnership
or other entity, a majority of the equity of which is owned and controlled by
such entity and/or Permitted Transferees referred to in clauses (A), (B), (C)
and (D); and (F) any bank or financial institution to which a bona fide pledge
of shares of Common Stock is made, provided that immediately following any
foreclosure upon such pledged shares of Common Stock, such bank or financial
institution shall cease to be a Permitted Transferee for all purposes of this
Agreement; and (iii) in the case of each Goldman Member (A) any other Goldman
Member or any Affiliate (other than an individual) of The Xxxxxxx Sachs Group,
Inc.; (B) any general or limited partner, member, director, officer or employee
of such Goldman Member (or other entity referred to in clause (A)); (C) the
heirs, executors, administrators, testamentary trustees, legatees or
beneficiaries of any of the individuals referred to in clause (B); (D) for
estate planning purposes, any trust, the beneficiaries of which include only (1)
Permitted Transferees referred to in clauses (A), (B) and (C) and (2) parents,
spouses and lineal descendants of Permitted Transferees referred to in clause
(B); (E) a corporation, partnership or other entity, a majority of the equity of
which is owned and controlled by such entity and/or Permitted Transferees
referred to in clauses (A), (B), (C) and (D); and (F) any bank or financial
institution to which a bona fide pledge of shares of Common Stock is made,
provided that immediately following any foreclosure upon such pledged shares of
Common Stock, such bank or financial institution shall cease to be a Permitted
Transferee for all purposes of this Agreement; provided, however, that in all
cases such Transferee shall agree in a writing in the form attached as Exhibit A
hereto to be bound by and to comply with all applicable provisions of this
Agreement. For the sake of clarity, in instances where there is an attempted
Transfer of Common Stock from one Permitted Transferee to another Person, such
Person must be a Permitted Transferee of the original Stockholder party from
which the shares of Common Stock were initially Transferred in order for such
Person to qualify as a Permitted Transferee of the Transferring Permitted
Transferee.
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"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivisions thereof or any group comprised of two or more of the foregoing.
"Pro Rata Portion" means:
(i) for the purposes of Article IV, with respect to any Stockholder,
on any issuance date for Equity Securities, the number or amount of Equity
Securities equal to the product of (i) the total number or amount of Equity
Securities to be issued by the Company on such date and (ii) the fraction
determined by dividing (A) the number of shares of Common Stock
beneficially owned by such Stockholder immediately prior to such issuance
by (B) the total number of shares of Common Stock outstanding on such date
immediately prior to such issuance;
(ii) for the purposes of Section 3.3, with respect to any ROFO
Recipient, with respect to any proposed Transfer of Offered Securities, the
number or amount of Offered Securities equal to the product of (x) the
total number or amount of Offered Securities to be offered to the ROFO
Recipients and (y) the fraction determined by dividing (A) the number of
shares of Common Stock beneficially owned by such ROFO Recipient by (B) the
total number of shares of Common Stock beneficially owned by all of the
ROFO Recipients as of such date; provided, however, that for the purpose of
determining the Pro Rata Portion of the Section 3.3 Non-Electing Shares
referred to in the third sentence of Section 3.3(c), (1) the reference to
"Offered Securities" in clause (x) of this subsection shall be a reference
to "Section 3.3 Non-Electing Shares" and (2) the total number of shares of
Common Stock referred to in clause (B) of this subsection (ii) shall not
include the Common Stock of the holder of the Section 3.3 Non-Electing
Shares;
(iii) for the purposes of Section 3.4, with respect to any Co-Sale
Participant, with respect to any proposed Transfer of Transferred
Securities, the number or amount of Transferred Securities equal to the
product of (x) the total number or amount of Transferred Securities to be
Transferred to the proposed Transferee and (y) the fraction determined by
dividing (A) the number of shares of Common Stock beneficially owned by
such Co-Sale Participant by (B) the total number of shares of Common Stock
beneficially owned by all of the Stockholders as of such date; and
(iv) for the purposes of Section 3.5, with respect to any Selling
Stockholder, with respect to any proposed Transfer of Drag Securities, the
number or amount of Drag Securities equal to the product of (x) the total
number or amount of Drag Securities to be Transferred to the proposed
Transferee and (y) the fraction determined by dividing (A) the number of
shares of Common Stock beneficially owned by such Selling Stockholder by
(B) the total number of shares of Common Stock beneficially owned by all of
the Stockholders as of such date.
"Purchase Agreement" has the meaning assigned to such term in the
Recitals.
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"Qualified IPO" means an IPO (x) of at least 25% of the then
outstanding shares of Common Stock or (y) that results in gross proceeds to the
Company of at least $159 million.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, among the Company and each of the
Stockholders, as it may be amended, supplemented or restated from time to time.
"Required Sponsor Stockholder Consent" has the meaning assigned to
such term in Section 2.3(a).
"Reserved Employee Shares" shall mean options to purchase Common Stock
(and shares of Common Stock issuable upon the exercise thereof) or restricted or
other shares of Common Stock or stock-based awards, in any case, issued to
employees, officers, directors or consultants pursuant to any stock option,
employee stock purchase or similar equity-based plans approved by the Board
(including adjustments in respect thereof for any subsequent stock dividends,
combinations, splits or the like), including the 2004 CSA Acquisition Corp.
Stock Incentive Plan.
"ROFO Recipients" has the meaning assigned to such term in Section
3.3(a).
"Section 3.3 Non-Electing Shares" has the meaning assigned to such
term in Section 3.3(c).
"Section 3.5 Transferring Stockholder(s)" has the meaning assigned to
such term in Section 3.5(a).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Sellers" has the meaning assigned to such term in the Recitals.
"Selling Management Stockholder" has the meaning assigned to such term
in Section 3.6(a).
"Selling Stockholder" has the meaning assigned to such term in Section
3.5(a).
"Services" means (i) a Management Stockholder's employment if the
Management Stockholder is an employee of the Company or any of its Affiliates,
(ii) a Management Stockholder's services as a consultant, if the Management
Stockholder is a consultant to the Company or any of its Affiliates and (iii) a
Management Stockholder's services as a non-employee director, if the Management
Stockholder is a non-employee member of the Board or the board of directors of
an Affiliate; provided however that unless otherwise determined by the Board or
the compensation committee of the Board, a change in a Management Stockholder's
status from employee to non-employee (other than with respect to a director of
the Company or an Affiliate) shall constitute a termination of "Services"
hereunder.
"Shares Buyer" has the meaning assigned to such term in Section
3.7(d).
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"Side-by-Side" has the meaning assigned to such term in the Preamble.
"Sponsor Stockholder" has the meaning assigned to such term in the
Preamble.
"Sponsor Stockholder Designees" has the meaning assigned to such term
in Section 2.1(a)(i).
"Stockholder" has the meaning set forth in the Preamble.
"Subsidiary" means (i) any corporation of which a majority of the
securities entitled to vote generally in the election of directors thereof, at
the time as of which any determination is being made, are owned by another
entity, either directly or indirectly, and (ii) any joint venture, general or
limited partnership, limited liability company or other legal entity in which an
entity is the record or beneficial owner, directly or indirectly, of a majority
of the voting interests or the general partner.
"Termination Event" has the meaning assigned to such term in Section
3.7(a).
"Transfer" means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of, either voluntarily or
involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment, pledge,
encumbrance, hypothecation or similar disposition of, any shares of Common Stock
beneficially owned by a Person or any interest in any shares of Common Stock
beneficially owned by a Person; provided however that a sale, transfer,
assignment, pledge, encumbrance, hypothecation or similar disposition (or
contract, option or other arrangement or understanding with respect thereto) of
any equity interest in a Sponsor Stockholder entity that engages in a business
or activity other than primarily owning Common Stock, shall not be considered a
Transfer hereunder.
"Transferee" means any Person to whom any Stockholder or any
Transferee thereof Transfers Common Stock in accordance with the terms hereof.
"Transfer Notice" has the meaning assigned to such term in Section
3.4(a).
"Transferred Securities" has the meaning assigned to such term in
Section 3.4(a).
"Transferring Stockholder" has the meaning assigned to such term in
Section 3.4(a).
"VCOC Funds" shall mean each Cypress Member and each Goldman Member
which is intended to qualify as a "venture capital operating company" within the
meaning of 29 C.F.R. Section 2510.3-101.
"Voting Securities" means, at any time, shares of any class of capital
stock of the Company, which are then entitled to vote generally in the election
of Directors.
SECTION 1.2. Other Definitional Provisions. (a) The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this
10
Agreement as a whole and not to any particular provision of this Agreement, and
Article and Section references are to Articles and Sections, respectively, of
this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
(d) The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.1. Board Representation. Subject to Section 2.6, the Sponsor
Stockholders agree, as between themselves, as follows: (a) As of the Effective
Date and, subject to the other provisions of this Article, for so long as this
Section 2.1 remains in effect, the Board shall be comprised of (and the Company
shall take all steps necessary so that the Board is comprised of) up to eleven
(11) Directors of whom:
(i) three (3) members shall be designees of Cypress, one (1) of which
shall be a designee of Cypress Onshore (such persons, the "Cypress
Designees") and three (3) members shall be designees of Goldman Onshore
(such persons, the "Goldman Designees" and, together with the Cypress
Designees, the "Sponsor Stockholder Designees");
(ii) one (1) member shall be the Chief Executive Officer of the
Company in office from time to time (the "CEO Designee"), who shall
initially be Xxxxx X. XxXxxx; and
(iii) up to four (4) individuals mutually agreed upon by Cypress and
Goldman.
(b) A designee of the Sponsor Stockholder holding (together with its
Permitted Transferees) the greatest number of shares of Common Stock (or, if
Cypress and Goldman hold an equal number of shares of Common Stock, a designee
as shall be mutually agreed upon by Cypress and Goldman) shall be designated as
the Chairman of the Board.
(c) In the event a Sponsor Stockholder shall cease to have the right
to designate a Director in accordance with Section 2.6, such Sponsor Stockholder
shall cause the designee of such Sponsor Stockholder to resign and the Directors
remaining in office shall decrease the size of the Board to eliminate such
vacancy and no consent under Section 2.3(a) shall be required in connection with
such decrease.
11
(d) The Company shall reimburse each Sponsor Stockholder Designee for
their reasonable out-of-pocket expenses incurred by them for the purpose of
attending meetings of the Board or committees thereof.
(e) Each Sponsor Stockholder agrees that the board of directors of
Xxxxxx-Standard Automotive Inc. or its successor entity shall have the same
number of directors and have the same representatives serving on its board of
directors as the Board. The Company shall take all such actions necessary as the
stockholder of Xxxxxx-Standard Automotive Inc. or its successor entity to cause
the board of directors of Xxxxxx-Standard Automotive Inc. to conform with the
requirements of this subclause (e).
(f) The rights of the Sponsor Stockholders pursuant to this Section
2.1 are personal to the Sponsor Stockholders and shall not be exercised by any
Transferee other than a Permitted Transferee of such Sponsor Stockholder.
(g) The Sponsor Stockholders agree to vote all of their Voting
Securities at any regular or special meeting of stockholders called for the
purpose of filling positions on the Board, or in any written consent executed in
lieu of such meeting, and agree to take all the actions necessary to cause the
events described in clauses (a), (b) and (c) to occur.
SECTION 2.2. Committees. Subject to Section 2.6, so long as a Sponsor
Stockholder has the right to designate at least one (1) Director pursuant to
Section 2.1, the parties agree that (and the Company shall take all steps
necessary so that) each executive committee, compensation committee, audit
committee or other significant committee of the Board (including, without
limitation, any committee performing the functions usually reserved for the
committees described above) shall include at least one (1) of each such Sponsor
Stockholder's designees; provided that the composition of each such committee
shall reflect the relative number of Sponsor Stockholder Designees for each
Sponsor Stockholder.
SECTION 2.3. Consent Rights. (a) In addition to any other vote or
consent of the Board or the stockholders of the Company required by law or the
Charter, subject to Section 2.6, the Company shall not take (or, to the extent
applicable, permit any Subsidiary to take) any of the following actions, or
enter into any arrangement or contract to do any of the following actions,
without the consent in writing of each of Cypress and Goldman (such consent
being the "Required Sponsor Stockholder Consent"), which shall be necessary for
authorizing, effecting or validating such transactions:
(i) the selection, termination or removal of the Chief Executive
Officer of the Company;
(ii) the incurrence by the Company or its Subsidiaries of indebtedness
for borrowed money (including through capital leases, the issuance of debt
securities or the guarantee of indebtedness of another Person) other than
(A) the incurrence of trade payables arising in the ordinary course of
operating the business, (B) borrowings under the Revolving Credit Facility
of Xxxxxx-Standard Automotive Inc. in effect as of the date hereof (as
amended or refinanced from time to time) or (C) indebtedness incurred
following the date hereof of up to $5,000,000 in the aggregate (excluding
borrowings
12
referred in clause (B) herein and including debt securities referred to in
clause (B) of Section 2.3(a)(iii));
(iii) any authorization or issuance of any securities of the Company
(including in the IPO), other than (A) the issuance of Reserved Employee
Shares, (B)(1) the issuance of any securities as consideration in, or in
connection with, a transaction approved pursuant to Sections 2.3(a)(x),
(xiii) or (xv) or (2) debt securities permitted pursuant to Section
2.3(a)(ii)(B) or (C) authorizations and issuances by Subsidiaries to the
Company or wholly owned Subsidiaries of the Company;
(iv) any redemption, acquisition or other purchase of any shares of
Common Stock other than from an employee in connection with such employee's
termination of employment with the Company or any Subsidiary;
(v) any payment or declaration of any dividend on or other
distribution in respect of any shares of Common Stock;
(vi) the creation of any non-wholly owned Subsidiaries, or the
Transfer or any sale or other disposition of a Subsidiary's securities to
any Person other than the Company or a wholly owned Subsidiary of the
Company (other than any pledge of such Subsidiary's stock pursuant to a
financing approved by the Board);
(vii) any transaction by the Company or any Subsidiary with or
involving any Affiliate of the Company or any Affiliate of any stockholder
of the Company that beneficially owns in excess of ten percent (10%) of the
voting power of the Company other than any transaction between the Company
or a wholly-owned Subsidiary of the Company, on the one hand, and another
wholly-owned Subsidiary, on the other hand;
(viii) any amendment, repeal or alteration of the Charter or the
Bylaws;
(ix) any increase or decrease in the size of the Board, committees of
the Board, and boards and committees of Subsidiaries of the Company (other
than increases or decreases in accordance with the other provisions of this
Article II) and any creation of committees of the Board or of the board of
directors of any Subsidiaries;
(x) any acquisition by the Company or any Subsidiary of a substantial
portion of the stock, equity interests or assets of any Person where the
value of the acquired assets is in excess of $5,000,000;
(xi) any change of the Company's auditor;
(xii) any compromise, settlement, waiver or release relating to any
pending or threatened claim, action, suit, proceeding, administrative
enforcement proceeding or arbitration proceeding before any Governmental
Body or arbitrator (public or private) having a value in the aggregate in
excess of $5,000,000 or that imposes non-monetary relief that would be
materially adverse to the Company or any Subsidiary of the Company;
13
(xiii) any (A) merger or consolidation of the Company with or into any
other Person, (B) direct or indirect sale of all or substantially all the
consolidated assets of the Company and its Subsidiaries or (C) issuance of
shares of capital stock of the Company in a transaction or series of
related transactions involving a Change of Control of the Company;
(xiv) any disposition of assets of the Company or any Subsidiary or
the capital stock or other equity interests of any Subsidiary where the
value of the assets to be disposed (including liabilities to be assumed or
transferred) is in excess of $5,000,000; and
(xv) any plan of liquidation, dissolution or the commencement of
proceedings relating to bankruptcy, insolvency, reorganization or relief of
debtors of the Company.
(b) In connection with any vote or action by written consent of the
stockholders of the Company relating to any matter requiring consent as
specified in Section 2.3(a), each Stockholder agrees, with respect to any Voting
Securities beneficially owned by such Stockholder with respect to which he or it
has the power to vote, to vote against (and not act by written consent to
approve) such matter if such matter has not been approved by the Required
Sponsor Stockholder Consent in accordance with Section 2.3(a).
SECTION 2.4. Available Financial Information. Subject to Section 2.6,
until an IPO, the Company will furnish to each of the Sponsor Stockholders
copies of the quarterly and annual "reports" containing financial information,
in any case to the extent required, as of the Effective Date, to be provided to
the holders of senior subordinated notes of Xxxxxx-Standard Automotive Inc.
under the indenture applicable to such notes (even if such notes are no longer
outstanding), together with such other information as may be requested by the
Sponsor Stockholders from time to time, it being understood and agreed that the
public filing of such quarterly and annual "reports" with the Securities and
Exchange Commission shall satisfy the foregoing requirements to furnish such
information to each Sponsor Stockholder.
SECTION 2.5. Access. Subject to Section 2.6, the Company shall, and
shall cause its Subsidiaries, and its and their respective employees to provide
each Sponsor Stockholder (and, separately, each VCOC Fund), during normal
business hours and upon reasonable notice reasonable access at reasonable times
to its employees and facilities and to books and records. In addition, with
respect to each VCOC Fund:
(a) Such VCOC Fund shall be entitled to routinely consult with and
advise management of the Company with respect to operations of the Company and
its direct and indirect Subsidiaries, including all the Company's business and
financial matters and management's proposed annual operating plans, and, if
requested by the VCOC Fund, management will meet periodically during each year
with representatives of such VCOC Fund (the "Representatives") at the Company's
facilities at mutually agreeable times for such consultation and advice,
including to review progress in achieving such plans;
(b) Such VCOC Fund shall be entitled to receive from the Company, as
soon as reasonably available after the end of each fiscal quarter, consolidated
balance sheets of the
14
Company and its Subsidiaries as of the end of such period, and consolidated
statements of income and cash flows of the Company and its Subsidiaries for the
period then ended prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis, except as
otherwise noted therein, and subject to the absence of footnotes and to year-end
adjustments;
(c) During any period when such VCOC Fund does not have the right to
appoint at least one member of the Board pursuant to Section 2.1, to the extent
consistent with applicable law (and with respect to events which require public
disclosure, only following the Company's public disclosure thereof through
applicable securities law filings or otherwise), the right to be informed by the
Company in advance with respect to any significant corporate actions, including,
without limitation, extraordinary dividends, mergers, acquisitions or
dispositions of assets, issuances of significant amounts of debt or equity and
material amendments to the certificate of incorporation or bylaws of the Company
and the right to consult with the Company with respect to such actions; and
(d) Without limiting any of the other rights of a Sponsor Stockholder
under this Agreement, the Company agrees to consider, in good faith, the
recommendations of the VCOC Fund in connection with the matters on which it is
consulted as described above.
SECTION 2.6. Termination and Modification of Rights. (a) At such time
as any Sponsor Stockholder (together with its Permitted Transferees) shall cease
to own a number of shares of Common Stock equal to (i) at least twenty percent
(20%) of the issued and outstanding shares of Common Stock, the Required Sponsor
Stockholder Consent of such Stockholder pursuant to Section 2.3(a) (other than
with respect to clauses (vii), (xiii) and (xv)) shall not be required and (ii)
at least fifteen percent (15%) of the issued and outstanding shares of Common
Stock, the Required Sponsor Stockholder Consent of such Stockholder pursuant to
Section 2.3(a)(vii), (xiii) and (xv) shall not be required;
(b) At such time as any Sponsor Stockholder (together with its
Permitted Transferees) shall cease to own a number of shares of Common Stock
equal to at least five percent (5%) of the issued and outstanding shares of
Common Stock, such Stockholder shall cease to have the right to designate any
Directors pursuant to Section 2.1 and any rights pursuant to Sections 2.2, 2.4
and 2.5;
(c) (i) At such time as any Sponsor Stockholder (together with its
Permitted Transferees) shall cease to own a number of shares of Common Stock
equal to at least fifty percent (50%) of its Original Shares, such Sponsor
Stockholder shall cease to have the right to designate more than two (2)
Directors pursuant to Section 2.1(a)(i) and (ii) at such time as any Sponsor
Stockholder (together with its Permitted Transferees) shall cease to own a
number of shares of Common Stock equal to at least twenty-five percent (25%) of
its Original Shares, such Sponsor Stockholder shall cease to have the right to
designate more than one (1) Director pursuant to Section 2.1 (a)(i); and
(d) At such time as either Sponsor Stockholder (together with its
Permitted Transferees) owns a number of shares of Common Stock equal to at least
(i) 56.04% of the issued and outstanding shares of Common Stock, such Sponsor
Stockholder shall have the right
15
to designate one (1) additional Director pursuant to Section 2.1(a)(i); (ii)
66.04% of the issued and outstanding shares of Common Stock, such Sponsor
Stockholder shall have the right to designate two (2) additional Directors
pursuant to Section 2.1(a)(i); (iii) 76.04% of the issued and outstanding shares
of Common Stock, such Sponsor Stockholder shall have the right to designate
three (3) additional Directors pursuant to Section 2.1(a)(i); and (iv) 86.04% of
the issued and outstanding shares of Common Stock, such Sponsor Stockholder
shall have the right to designate four (4) additional Directors pursuant to
Section 2.1(a)(i).
SECTION 2.7. VCOC. In the event that the Company ceases to qualify as
an "operating company" (as defined in the first sentence of 29 C.F.R. Section
2510.3-101(c)), then the Company and each Sponsor Stockholder will cooperate in
good faith to take all commercially reasonable action necessary to provide that
the investment (or at least fifty-one percent (51%) of the investment valued at
cost) of each VCOC Fund shall continue to qualify as a "venture capital
investment" (as defined in 29 C.F.R. Section 2510.3-101(d)).
ARTICLE III
TRANSFERS
SECTION 3.1. Rights and Obligations of Transferees. (a) No Transferee
of any Stockholder, except a Permitted Transferee, shall be entitled to exercise
any rights under this Agreement of such Stockholder. If a Stockholder Transfers
shares of Common Stock to a Permitted Transferee and such Permitted Transferee
thereafter ceases to be a Permitted Transferee of such Stockholder, such
Permitted Transferee shall promptly transfer such Common Stock back to the
Transferring Stockholder and shall not be entitled to exercise rights with
respect to such shares of Common Stock from such time as such Person ceases to
be a Permitted Transferee.
(b) Subject to the last sentence of this Section 3.1(b), prior to the
consummation of a Transfer by any Stockholder or any Transferee, as a condition
thereto, the applicable Transferee or subsequent Transferee shall agree in
writing in the form attached as Exhibit A hereto to assume all of the
obligations in this Agreement applicable to the Transferring Stockholder with
respect to the Common Stock so transferred. Notwithstanding the foregoing, a
Transferee of Common Stock shall not be bound by any of the terms and conditions
of this Agreement if the applicable Transfer is pursuant to an effective
registration statement under the Securities Act or to the public pursuant to
Rule 144 of the Securities Act.
SECTION 3.2. Transfer Restrictions.
(a) Sponsor Stockholders.
(i) Until the fifth (5th) anniversary of the Effective Date, each
Sponsor Stockholder shall not Transfer any of its Common Stock at any time
other than: (A) Transfers to Permitted Transferees of such Stockholder; (B)
following the IPO, Transfers pursuant to the Registration Rights Agreement;
(C) Transfers by Co-Sale Participants pursuant to Section 3.4 and by
Selling Stockholders (other than Section 3.5 Transferring
16
Stockholder(s)) pursuant to Section 3.5; and (D) Transfers (subject to
Sections 3.3 and 3.4) with the prior written consent of each Sponsor
Stockholder (except for a Sponsor Stockholder which does not (together with
its Permitted Transferees) own at least 15% of the issued and outstanding
shares of Common Stock).
(ii) Following the fifth (5th) anniversary of the Effective Date, so
long as the Company has not completed an IPO, and, subject to compliance
with Sections 3.3, 3.4 and 3.5, each Sponsor Stockholder may freely
Transfer its Common Stock without restriction subject to compliance with
applicable securities laws.
(iii) Following the fifth (5th) anniversary of the Effective Date, if
the Company has completed an IPO, each Sponsor Stockholder may freely
Transfer its Common Stock without restriction subject to compliance with
applicable securities laws.
(b) Management Stockholders and Director Stockholders.
(i) Until the earliest to occur of (x) the date of a Qualified IPO,
(y) the date of a Change of Control and (z) the seventh (7th) anniversary
of the Effective Date (the earliest of such dates, the "Lapse Date"), each
Management Stockholder and Director Stockholder hereby agrees that such
Stockholder shall not Transfer any of his or her Common Stock at any time
other than (A) Transfers to Permitted Transferees; (B) Transfers pursuant
to Sections 3.4, 3.5 and (in the case of Management Stockholders) 3.7; and
(C) Transfers to the Company or a Sponsor Stockholder (or any of its
Affiliates).
(ii) Following the Lapse Date, so long as the Company has not
completed a Qualified IPO, and, subject to compliance with Section 3.6,
each Management Stockholder and Director Stockholder may freely Transfer
his or her Common Stock without restriction subject to compliance with
applicable securities laws.
(iii) Following the Lapse Date, if the Company has completed a
Qualified IPO, each Management Stockholder and Director Stockholder may
freely Transfer his or her Common Stock without restriction subject to
compliance with applicable securities laws.
(c) Unless each Sponsor Stockholder (except for a Sponsor Stockholder
which does not (together with its Permitted Transferees) own at least 15% of the
issued and outstanding shares of Common Stock) agrees to the contrary, no
Stockholder shall Transfer any of its Common Stock at any time to a Company
Competitor or a Person that has been deemed by the Board to be materially
adverse to the Company; provided that following an IPO, such restriction shall
not apply to sales in an open market transaction as long as the selling
Stockholder has no knowledge that the recipient is a Company Competitor or has
been deemed by the Board to be materially adverse to the Company.
SECTION 3.3. Right of First Offer with Respect to Sponsor
Stockholders. So long as the Company has not completed an IPO, no Sponsor
Stockholder shall Transfer any of its Common Stock other than (i) to a Permitted
Transferee, (ii) a Transfer by a Co-Sale Participant pursuant to Section 3.4 or
(iii) by a Selling Stockholder (other than Section 3.5 Transferring
Stockholder(s)) pursuant to Section 3.5, except as set forth below:
17
(a) Prior to any Transfer of Common Stock by a Sponsor Stockholder
(the "Offering Holder"), the Offering Holder shall deliver to the Company and
each Sponsor Stockholder that is not a Permitted Transferee of the Offering
Holder (collectively, excluding the Company, the "ROFO Recipients") written
notice (the "Offer Notice"), stating such Offering Holder's intention to effect
such a Transfer, the number of shares of Common Stock subject to such Transfer
(the "Offered Securities"), the price the Offering Holder proposes to be paid
for the Offered Securities (the "First Offer Price"), and the other material
terms and conditions of the proposed Transfer.
(b) Upon receipt of the Offer Notice, the Company will have an
irrevocable non-transferable option to purchase all or a portion of the Offered
Securities at the First Offer Price and otherwise on the terms and conditions
described in the Offer Notice (the "First Offer"). The Company shall, within
fifteen (15) days from receipt of the Offer Notice, indicate whether or not it
has accepted the First Offer by sending irrevocable written notice of any such
acceptance to the Offering Holder and the ROFO Recipients indicating the number
of Offered Shares to be purchased (the "Acceptance Notice"), and the Company
shall then be obligated to purchase such number of Offered Securities on the
terms and conditions set forth in the Offer Notice. In the event the Company
elects not to purchase any or all of the Offered Securities, the ROFO Recipients
shall have the option to purchase at the First Offer Price all, but not less
than all, of the Offered Securities with respect to which the Company has not
exercised its option, and each of the ROFO Recipients shall, within fifteen (15)
days from receipt of the Company's Acceptance Notice, indicate to the Offering
Holder and the Company if it has accepted the First Offer and, if so, the number
of Offered Securities to be purchased by sending irrevocable written notice of
such acceptance to the Offering Holder and the Company, and such ROFO Recipient
shall then be obligated to purchase such number of Offered Securities on the
terms and conditions set forth in the Offer Notice.
(c) Notwithstanding any other provision of this Section 3.3, the ROFO
Recipients and the Company shall not be permitted to purchase less than all of
the Offered Securities without the consent of the Offering Holder. The number of
shares that each ROFO Recipient shall be entitled to purchase upon the exercise
of the right of first offer shall be equal to such ROFO Recipient's Pro Rata
Portion of the Offered Securities other than those as to which the Company has
exercised its option. In the event any ROFO Recipient elects to purchase less
than all of its Pro Rata Portion (such remaining securities, the "Section 3.3
Non-Electing Shares"), the Company shall notify the other ROFO Recipients as to
the aggregate number of Section 3.3 Non-Electing Shares, and each such other
ROFO Recipient shall be entitled to purchase its Pro Rata Portion of the Section
3.3 Non-Electing Shares by providing written notice that such ROFO Recipient has
elected to purchase all (but not less than all) of its Pro Rata Portion of the
Section 3.3 Non-Electing Shares within five (5) days of receipt of such notice,
and such ROFO Recipient shall then be obligated to purchase such ROFO
Recipient's Pro Rata Portion of the Section 3.3 Non-Electing Shares.
(d) If neither the Company nor the ROFO Recipients (in the aggregate)
elect to purchase all of the Offered Securities pursuant to this Section 3.3,
then the applicable Offering Holder shall be free for a period of six (6) months
from the date acceptance notices from the ROFO Recipients were due to be
received by the applicable Offering Holder to enter into definitive agreements
to Transfer the Offered Securities to a Transferee for consideration having
18
a value not less than the First Offer Price and to transfer the Offered
Securities pursuant to such definitive agreements; provided that any such
definitive agreement provides for the consummation of such Transfer to take
place within six (6) months from the date of such definitive agreement and is
otherwise on terms not more favorable to the transferee in any material respect
than were contained in the Offer Notice.
(e) If neither the Company nor the ROFO Recipients (in the aggregate)
exercise their respective options to purchase all of the Offered Securities at
the First Offer Price and the applicable Offering Holder has not entered into a
definitive agreement described in Section 3.3(d) within six (6) months from the
date acceptance notices from the ROFO Recipients were due to be received by the
applicable Offering Holder, or the Offering Holder has entered into such an
agreement but has not consummated the sale of such securities within six (6)
months from the date of such definitive agreement, then the provisions of this
Section 3.3 shall again apply, and such Offering Holder shall not Transfer or
offer to Transfer such shares of Common Stock without again complying with this
Section 3.3.
(f) Upon exercise by the Company and/or the ROFO Recipients, as the
case may be, of their respective rights of first offer under this Section 3.3,
the Company and/or the ROFO Recipients, as the case may be, and the applicable
Offering Holder shall be legally obligated to consummate the purchase
contemplated thereby and shall use their commercially reasonable efforts to
secure any governmental authorization required, to comply as soon as reasonably
practicable with all applicable laws and to take all such other actions and to
execute such additional documents as are reasonably necessary or appropriate in
connection therewith and to consummate the purchase of the Offered Securities as
promptly as practicable.
SECTION 3.4. Right of Co-Sale on Transfers by Stockholders. (a) In the
event of a proposed Transfer of Common Stock by a Sponsor Stockholder (a
"Transferring Stockholder"), each Stockholder (other than the Transferring
Stockholder) shall have the right to participate in the Transfer in the manner
set forth in this Section 3.4. Prior to any such Transfer, the Transferring
Stockholder shall deliver to the Company prompt written notice (the "Transfer
Notice"), which the Company will forward to the Stockholders (other than the
Transferring Stockholder) and each Permitted Transferee to which Common Stock
has been Transferred (other than the Transferring Stockholder, the "Co-Sale
Participants"), which notice shall state (i) the name of the proposed
Transferee, (ii) the number of shares of Common Stock proposed to be Transferred
(the "Transferred Securities"), (iii) the proposed purchase price therefor,
including a description of any non-cash consideration, and (iv) the other
material terms and conditions of the proposed Transfer, including the proposed
Transfer date (which date may not be less than thirty-five (35) days after
delivery of the Transfer Notice). Such notice shall be accompanied by a written
offer from the proposed Transferee to purchase the Transferred Securities from
the Co-Sale Participants on the same terms and conditions as applicable to the
Transferring Stockholder. Each Co-Sale Participant may Transfer to the proposed
Transferee identified in the Transfer Notice their Pro Rata Portion of the
Transferred Securities by giving written notice to the Company (who shall
forward such notice to the other Co-Sale Participants within five (5) days) and
to the Transferring Stockholder within the thirty (30) day period after the
delivery of the Transfer Notice, which notice shall state that such Co-Sale
Participant elects to exercise its rights of co-sale under this Section 3.4 and
shall state the maximum number of shares sought to be Transferred. Each Co-Sale
Participant shall be deemed to have waived its right of co-sale
19
hereunder if it either fails to give notice within the prescribed time period or
if such Co-Sale Participant purchases Common Stock in exercising its right of
first offer pursuant to Section 3.3. The proposed Transferee of Transferred
Securities will not be obligated to purchase a number of shares of Common Stock
exceeding that set forth in the Transfer Notice and in the event such Transferee
elects to purchase less than all of the additional shares of Common Stock sought
to be Transferred by the Co-Sale Participants, the number of shares of Common
Stock to be Transferred by the Transferring Stockholder and each such Co-Sale
Participant shall be reduced on a pro rata basis.
(b) The following Transfers of Common Stock by any Stockholder shall
not be subject to the co-sale rights provided by this Section 3.4: (i) Transfers
to Permitted Transferees of such Stockholder and (ii) Transfers following an
IPO.
SECTION 3.5. Drag Along Rights. (a) Whether before or following the
IPO, if one or more Sponsor Stockholders desires to Transfer or cause the
Transfer of shares of Common Stock representing at least 50.01% of the Voting
Securities of the Company (such proposed amount, the "Drag Securities") then
such Sponsor Stockholder(s) (the "Section 3.5 Transferring Stockholder(s)"), may
require each other Stockholder (a "Selling Stockholder") to sell its Pro Rata
Portion of the Common Stock held by it in connection with such Transfer;
provided that the right of a Sponsor Stockholder to effect a Transfer pursuant
to this Section 3.5(a) may only be exercised (i) jointly by the Sponsor
Stockholders for so long as the percentage of the total issued and outstanding
Voting Securities owned by Cypress (together with its Permitted Transferees) is
within fifteen percent (15%) of the percentage of total issued and outstanding
Voting Securities owned by Goldman (together with its Permitted Transferees) and
(ii) by the Sponsor Stockholder which (together with its Permitted Transferees)
has a greater ownership stake of issued and outstanding Voting Securities if
clause (i) is not applicable.
(b) The consideration to be received by a Selling Stockholder shall be
the same form and amount of consideration per share to be received by the
Section 3.5 Transferring Stockholder(s), and the terms and conditions of such
sale shall be the same as those upon which the Section 3.5 Transferring
Stockholder(s) sells its Common Stock. In connection with the transaction
contemplated by Section 3.5(a) (the "Drag Transaction"), the Selling Stockholder
will agree to make or agree to the same customary representations, covenants,
indemnities and agreements as the Section 3.5 Transferring Stockholder(s) so
long as they are made severally and not jointly and the liabilities thereunder
are borne on a pro rata basis based on the consideration to be received by each
Stockholder.
(c) The fees and expenses of a Section 3.5 Transferring Stockholder
incurred in connection with a sale under this Section 3.5 and for the benefit of
all Stockholders (it being understood that costs incurred by or on behalf of a
Stockholder for his, her or its sole benefit will not be considered to be for
the benefit of all Stockholders), to the extent not paid or reimbursed by the
Company or the Transferee or acquiring Person, shall be shared by all the
Stockholders on a pro rata basis, based on the consideration received by each
Stockholder; provided that no Stockholder shall be obligated to make any
out-of-pocket expenditure prior to the consummation of the transaction
consummated pursuant to this Section 3.5.
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(d) The Section 3.5 Transferring Stockholder(s) shall provide written
notice (the "Drag Along Notice") to each other Selling Stockholder of any
proposed Drag Transaction as soon as practicable following its exercise of the
rights provided in Section 3.5(a). The Drag Along Notice shall set forth the
consideration to be paid by the purchaser for the securities and the material
terms of the Drag Transaction.
(e) If any holders of Common Stock are given an option as to the form
and amount of consideration to be received, all holders of Common Stock will be
given the same option. Each Stockholder agrees to waive any "appraisal" or
"dissenters'" rights or similar rights it may have in connection with any Drag
Transaction.
(f) At least ten (10) Business Days prior to the consummation of the
sale, each Selling Stockholder shall deliver to the Company to hold in escrow
pending transfer of the consideration therefor, the duly endorsed certificate or
certificates representing the shares of Common Stock held by such Selling
Stockholder to be sold, and a stock power and limited power-of-attorney
authorizing the Company to take all actions necessary to sell or otherwise
dispose of such securities. In the event that a Selling Stockholder should fail
to deliver documentation, the Company shall cause the books and records of the
Company to show that such shares of Common Stock are bound by the provisions of
this Section 3.5 and that such securities may only be Transferred to the
purchaser in such Drag Transaction.
(g) Upon the consummation of the Drag Transaction, the acquiring
Person shall remit directly to the Selling Stockholder, by wire transfer if
available and if requested by the Selling Stockholder, the consideration for the
securities sold pursuant thereto.
(h) The Company and the applicable Selling Stockholders shall be
legally obligated to consummate the Drag Transaction contemplated hereby,
subject to the terms and conditions contained therein, and shall use their
commercially reasonable efforts to secure any governmental authorization
required, to comply as soon as reasonably practicable with all applicable laws
and to take all such other actions and to execute such additional documents as
are reasonably necessary or appropriate in connection therewith and to
consummate the sale of the Drag Securities as contemplated hereby.
SECTION 3.6. Right of First Refusal With Respect to Management
Stockholders and Director Stockholders. Following the Lapse Date, so long as the
Company has not completed a Qualified IPO, no Management Stockholder or Director
Stockholder shall Transfer any of his or her Common Stock other than to a
Permitted Transferee or a Transfer as a Co-Sale Participant pursuant to Section
3.4, as a Selling Stockholder pursuant to Section 3.5, or pursuant to Section
3.7, except as set forth below:
(a) At any time a Management Stockholder or Director Stockholder
proposes to make a Transfer of any Common Stock, and such Management Stockholder
or Director Stockholder (a "Selling Management Stockholder") has received a bona
fide arm's length offer (the "Management Offer") to purchase all or any portion
of the Common Stock held by him or her (the "Offered Management Securities")
from any Person (the "Management Offeror") which the Selling Management
Stockholder wishes to accept, such Selling Management Stockholder shall cause
the Management Offer to be reduced to writing and shall notify the Company in
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writing of its wish to accept the Management Offer (the "Management Offer
Notice"). The Management Offer Notice shall contain an irrevocable offer to sell
the Offered Management Securities to the Company at a price equal or equivalent
(as determined in the manner set forth in Section 3.6(b) below) to the price the
Management Offeror proposes to pay for the Offered Management Securities in the
Management Offer, and otherwise on the same terms and conditions of such
Management Offer and shall be accompanied by a copy of such Management Offer
(which shall identify the Management Offeror).
(b) Upon receipt of the Management Offer Notice, the Company will have
an irrevocable non-transferable (other than to the Sponsor Stockholders) option
to purchase all or a portion of the Offered Management Securities (i) at the
same price and on the same terms and conditions as the Management Offer or (ii)
if the Management Offer includes any consideration other than cash, then at the
sole option of the Company, at the equivalent cash price, determined in good
faith by the Company's Board, and otherwise on the terms and conditions
described in the Management Offer Notice. The Company shall, within fifteen (15)
days from receipt of the Management Offer Notice, indicate whether or not it has
elected to purchase all or any portion of the Offered Management Securities by
sending irrevocable written notice of any such election to the Selling
Management Stockholder, and the Company shall then be obligated to purchase such
amount of all of the Offered Management Securities on the terms and conditions
set forth in the Management Offer Notice.
(c) If the Company does not exercise its option to purchase all of the
Offered Management Securities pursuant to this Section 3.6, then the applicable
Selling Management Stockholder shall be free for a period of sixty (60) days
from the date an acceptance notice from the Company was due to be received by
the Selling Management Stockholder to enter into definitive agreements to
Transfer all or such portion of the Offered Management Securities not purchased
by the Company and to Transfer all or such portion of the Offered Management
Securities pursuant to such definitive agreements; provided that any such
definitive agreement provides for the consummation of such Transfer to take
place within sixty (60) days from the date of such definitive agreement and is
on terms and conditions not more favorable to the transferee than were contained
in the Management Offer Notice.
(d) If the Selling Management Stockholder has not entered into a
definitive agreement to Transfer all or such portion of the Offered Management
Securities not purchased by the Company to the Management Offeror within sixty
(60) days from the date an acceptance notice from the Company was due to be
received by the applicable Selling Management Stockholder, or the Selling
Management Stockholder has entered into such an agreement but has not
consummated the Transfer the Offered Management Securities to the Management
Offeror within sixty (60) days from the date of such definitive agreement, then
the provisions of this Section 3.6 shall again apply, and such Selling
Management Stockholder shall not Transfer or offer to Transfer such shares of
Common Stock without again complying with this Section 3.6.
(e) No Transfer to the Management Offeror shall be consummated unless
and until (A) such Management Offeror shall represent in writing to the Company
that it is aware of the rights and obligations of the Company contained in this
Agreement and (B) prior to the purchase by such Management Offeror of any of
such Offered Management Shares, such
22
Management Offeror shall become a party to this Agreement and shall agree to be
bound by the terms and conditions hereof to the same extent as the Selling
Management Stockholder.
(f) Upon exercise by the Company of its rights of first refusal under
this Section 3.6, the Company and the applicable Selling Management Stockholder
shall be legally obligated to consummate the purchase contemplated thereby and
shall use their commercially reasonable efforts to secure any governmental
authorization required, to comply as soon as reasonably practicable with all
applicable laws and to take all such other actions and to execute such
additional documents as are reasonably necessary or appropriate in connection
therewith and to consummate the purchase of the Offered Management Securities as
promptly as practicable.
SECTION 3.7. Management Call Option. (a) Prior to the Lapse Date, if a
Management Stockholder's Services to the Company or any Subsidiary terminate for
any reason (a "Termination Event"), the Company shall have the right but not the
obligation to purchase, from time to time after such termination of Services,
any share of Common Stock held by such Management Stockholder and any Permitted
Transferees of such Management Stockholder who or which hold shares of Common
Stock for a period of 181 days immediately following the later of (x) the date
of the Termination Event and (y) the date that such Management Stockholder
acquired such share of Common Stock (the later of (x) and (y), the "First
Purchase Date"), and such Management Stockholder (and Permitted Transferees)
shall be required to sell to the Company, any or all of such shares of Common
Stock then held by such Management Stockholder (and such Permitted Transferees),
at a price per share equal to the applicable purchase price determined pursuant
to Section 3.7(d) or (e);
(b) Any shares of Common Stock purchased by the Company shall be
cancelled.
(c) If on the first Business Day following the First Purchase Date,
the Company has not purchased all of a terminated Management Stockholder's
shares of Common Stock (including shares of Common Stock held by Permitted
Transferees), the Company shall on or before such day provide written notice to
the Sponsor Stockholders of (i) its decision not to purchase some or all of such
shares of Common Stock and (ii) the number of such Management Stockholder's (and
Permitted Transferees') shares of Common Stock ("Eligible Shares") which the
Company did not purchase, and the Sponsor Stockholders shall then have the right
to purchase and such Management Stockholder (and Permitted Transferees) shall be
required to sell to the Sponsor Stockholder(s), any or all of the Eligible
Shares then held by such Management Stockholder (and Permitted Transferees) at a
price per share of Common Stock equal to the applicable purchase price
determined pursuant to Section 3.7(d) or (e). Within thirty (30) days of receipt
of the Company's written notice described above, each Sponsor Stockholder
desiring to purchase shares of Common Stock shall provide written notice to the
Company, specifying that such Sponsor Stockholder is willing to purchase (i) its
pro rata portion of the Eligible Shares (based upon the number of shares of
Common Stock held by such Sponsor Stockholder relative to the total number of
shares of Common Stock held by all of the Sponsor Stockholders), (ii) a number
of Eligible Shares less than such Sponsor Stockholder's pro rata portion, or
(iii) any and all shares of Common Stock available to be purchased; provided,
that the Sponsor Stockholders shall, as much as reasonably practicable, consult
with each other and coordinate the exercise of rights such that all Eligible
Shares are elected to be purchased. Upon receipt of the Sponsor Stockholders'
respective notices, the Company will notify the Management Stockholder of the
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Sponsor Stockholder(s)' elections (and all determinations by the Board of Fair
Market Value) and the Management Stockholder (and Permitted Transferees) will be
obligated to sell (x) to the Sponsor Stockholders making elections described in
clauses (i) and (ii) of the preceding sentence, the number of Eligible Shares
elected to be purchased by such Sponsor Stockholders and (y) all remaining
Eligible Shares, if any, to the Sponsor Stockholders making the election
described in clause (iii) of the preceding sentence to such Sponsor
Stockholder(s) on a pro rata basis (based upon the number of shares of Common
Stock held by such Sponsor Stockholder relative to the total number of shares of
Common Stock held by all of the Sponsor Stockholders making such election), but
in no event more that any such Sponsor Stockholders elected to purchase.
(d) In the event of a purchase by the Company pursuant to Section
3.7(a) and/or the Sponsor Stockholder pursuant to Section 3.7(c) (each a "Shares
Buyer") on or prior to the first (1st) anniversary of the Effective Date, the
purchase price shall be the price paid by the Management Stockholder to the
Company for the shares of Common Stock.
(e) In the event of a purchase by a Shares Buyer pursuant to Section
3.7(a) and/or the Sponsor Stockholder pursuant to Section 3.7(c) after the first
(1st) anniversary of the Effective Date, the purchase price shall be:
(i) in the case of a termination for Cause, a price per share of
Common Stock equal to the lesser of (x) the Fair Market Value, determined
as at the First Purchase Date and (y) price paid by the Management
Stockholder to the Company for the shares of Common Stock; and
(ii) in the case of any other Termination Event, a price per
share of Common Stock equal to the Fair Market Value determined as at the
First Purchase Date.
For purpose of clauses (d) and (e) of this Section 3.7, the purchase price paid
by Xxxxx X. XxXxxx for Bonus Common Stock (as defined in his Original
Subscription Agreement) shall be deemed to be $100 per share, or $1,000,000 in
the aggregate.
(f) At the closing of the purchase of the shares of Common Stock by
the Shares Buyer (which may be postponed as reasonably necessary to permit any
appraisal required by Section 3.7(i) to be completed), the Management
Stockholder (and Permitted Transferees) shall deliver certificates representing
the shares of Common Stock to be purchased, duly endorsed for transfer and
accompanied by all requisite transfer taxes, if any, and such shares of Common
Stock shall be free and clear of any liens, and the Management Stockholder (and
Permitted Transferees) selling the shares of Common Stocks shall so represent
and warrant, and shall further warrant that it is the sole beneficial and record
owner of such shares of Common Stock with the full right, power and authority to
convey the shares of Common Stock to the Shares Buyer. At such closing, all of
the parties to the transaction shall execute such additional documents as are
otherwise necessary or appropriate. The Shares Buyer shall pay the purchase
price for such shares of Common Stock by delivery of funds deposited into an
account designated by the Management Stockholder, a bank cashier's check, a
certified check or a company check of the Shares Buyer for the purchase price;
provided that if the Shares Buyer is the Company and is entitled to delay the
payment of the purchase price pursuant to Section
24
3.7(g), the Company may so delay the payment of the purchase price (i) by
delivery of funds pursuant to a note or (ii) by delaying the exercise of its
purchase rights until such date that the purchase will not result in a Financing
Default (which date shall not be later than the first (1st) anniversary of the
First Purchase Date), pursuant to Section 3.7(g). The Company shall within
thirty (30) days of learning of any fact permitting the delay of the purchase of
shares of Common Stock pursuant to Section 3.7(g) so notify the affected
Management Stockholder and agrees to use commercially reasonable efforts to cure
the grounds for such delay. If the Company has opted to delay the payment of the
purchase price by delivery of a note, the term of the note shall (i) not be
longer than five (5) years from the date of the purchase, (ii) shall include
interest at the prime lending rate in effect as of the date of the purchase on
such amount for the period from the date of the purchase to but excluding the
date of such payment and (iii) shall be payable in quarterly installments.
Notwithstanding anything to the contrary in this Agreement, if the Shares Buyer
is the Company, it may deduct and withhold from the amounts otherwise payable
pursuant to this Agreement such amounts as necessary to comply with the Code or
any other provision of applicable Law, with respect to the making of such
payment.
(g) Notwithstanding anything to the contrary elsewhere herein, the
Company shall not be obligated to pay the purchase price for any shares of
Common Stock with respect to which the Company has exercised its purchase right
pursuant to this Section 3.7, regardless of whether it has delivered a notice of
its election to purchase any such shares of Common Stock, (i) to the extent that
the purchase of such shares of Common Stock (together with any other purchases
of shares of Common Stock pursuant to this Section 3.7, or pursuant to similar
provisions in any other agreements with other investors of which the Company has
at such time been given or has given notice) would result, after giving effect
thereto (including any dividends or other distributions or loans from a
Subsidiary of the Company to the Company in connection therewith), in a
Financing Default, or (ii) if immediately prior to such purchase of shares of
Common Stock, there exists a Financing Default which prohibits such purchase
(including any dividends or other distributions or loans from a Subsidiary of
the Company to the Company in connection therewith); provided that in the event
the Company has not paid the purchase price for shares of Common Stock to which
the Company has exercised its purchase right pursuant to this Section 3.7 by the
first (1st) anniversary of the First Purchase Date, then such purchase right of
the Company shall expire with respect to such shares of Common Stock.
(h) Notwithstanding anything to the contrary contained in this Section
3.7, any shares of Common Stock which the Company has elected to purchase from a
Management Stockholder (and Permitted Transferees), but which in accordance with
Section 3.7(f) and (g) payment has been delayed, shall be purchased by the
Company on the thirtieth (30th) day after such date or dates that it is no
longer permitted to delay payment for the purchasing of such shares of Common
Stock under Section 3.7(f) and (g), and the Company shall give such Management
Stockholder seven (7) days prior notice of any such payment; provided that in
the event the Company elects to purchase shares of Common Stock pursuant to this
Section 3.7 and defers the payment of the purchase price for such shares of
Common Stock pursuant to Section 3.7(g) but does not pay for such shares of
Common Stock on or prior to the first (1st) anniversary of the First Purchase
Date, the Company's right to purchase such shares of Common Stock shall expire.
25
(i) Notwithstanding anything to the contrary, if the Management
Stockholder disagrees with the Board's determination of the Fair Market Value,
(i) subject to confidentiality issues, he may request data that is reasonably
sufficient to check the Board's calculations and/or (ii) he may require the
Company to retain an independent investment banker to determine the Fair Market
Value; provided that no more than one appraisal right may be exercised per
calendar year by all of the Management Stockholders (and Permitted Transferees)
in total. The Company will bear the cost of such appraisal, unless the appraised
value is 110% or less of the Board's determination of the Fair Market Value, in
which case the Management Stockholder will bear the cost of such appraisal.
SECTION 3.8. Registration Rights. The Company hereby grants to the
Stockholders the registration and other rights set forth in, and the
Stockholders agree to comply with the terms and conditions contained in, the
Registration Rights Agreement.
SECTION 3.9. Void Transfers. Any Transfer or attempted Transfer of
Common Stock in violation of any provision of this Agreement shall be void.
ARTICLE IV
EQUITY PURCHASE RIGHTS
SECTION 4.1. Equity Purchase Rights. (a) The Company hereby grants to
each Stockholder the right to purchase its Pro Rata Portion of all or any part
of Equity Securities that the Company may, from time to time, propose to sell or
issue ("Equity Purchase Right") prior to an IPO. The number or amount of Equity
Securities which the Stockholders may purchase pursuant to this Section 4.1(a)
shall be referred to as the "Equity Purchase Shares." The Equity Purchase Right
provided in this Section 4.1(a) shall apply at the time of issuance of any
right, warrant or option or convertible or exchangeable security and not to the
conversion, exchange or exercise thereof.
(b) The Company shall give written notice of a proposed issuance or
sale described in Section 4.1(a) to the Stockholders at least fifteen (15) days
prior to the proposed issuance or sale. Such notice (the "Issuance Notice")
shall set forth the material terms and conditions of such proposed transaction,
the number or amount and description of the shares proposed to be issued, the
proposed issuance date and the proposed purchase price per share, including a
description of any non-cash consideration.
(c) At any time during the fifteen (15) day period following the
receipt of an Issuance Notice, each Stockholder shall have the right to elect
irrevocably to purchase its Pro Rata Portion of the number of the Equity
Purchase Shares at the purchase price set forth in the Issuance Notice and upon
the other terms and conditions specified in the Issuance Notice by delivering a
written notice to the Company. Except as provided in the following sentence,
such purchase shall be consummated concurrently with the consummation of the
issuance or sale described in the Issuance Notice. The closing of any purchase
by any Stockholder may be extended beyond the closing of the transaction
described in the Issuance Notice to the extent necessary to (i) obtain required
governmental approvals and other required approvals and the
26
Company and the Stockholders shall use their respective commercially reasonable
efforts to obtain such approvals and (ii) permit the Sponsor Stockholders to
complete their internal capital call process; provided that the extension
pursuant to this clause (ii) shall not exceed thirty (30) days.
(d) Each Stockholder exercising its right to purchase its respective
portion of the Equity Purchase Shares in full (an "Exercising Stockholder")
shall have a right of over-allotment such that if any other Stockholder fails to
exercise its right hereunder to purchase its full Pro Rata Portion of Equity
Securities (a "Non-Purchasing Stockholder"), such Exercising Stockholder may
purchase its Pro Rata Portion of such securities by giving written notice to the
Company within ten (10) days from the date that the Company provides written
notice of the amount of Equity Securities as to which such Non-Purchasing
Stockholders have failed to exercise their Equity Purchase Rights hereunder.
(e) If any Stockholder or Exercising Stockholder fails to exercise
fully the Equity Purchase Right within the periods described above and after
expiration of the ten (10) day period for exercise of the over-allotment
provisions pursuant to Section 4.1(d) above, the Company shall be free to
complete the proposed issuance or sale of the Equity Securities described in the
Issuance Notice with respect to which Exercising Stockholders failed to exercise
the option set forth in this Section 4.1 on terms no less favorable to the
Company than those set forth in the Issuance Notice (except that the amount of
securities to be issued or sold by the Company may be reduced); provided that
(x) such issuance or sale is closed within ninety (90) days after the expiration
of the (A) ten (10) day period described in Section 4.1(d) or (B) if there are
not any Non-Purchasing Stockholders, fifteen (15) day period described in
Section 4.1(c) and (y) the price at which the Equity Securities are Transferred
must be equal to or higher than the purchase price described in the Issuance
Notice. Such periods within which such issuance or sale must be closed shall be
extended to the extent necessary to obtain required governmental approvals and
other required approvals and the Company shall use its commercially reasonable
efforts to obtain such approvals. In the event that the Company has not sold
such Equity Securities within said ninety (90) day period, the Company shall not
thereafter issue or sell any Equity Securities, without first again offering
such securities to the Stockholders in the manner provided in this Section 4.1.
Notwithstanding the foregoing, Equity Purchase Rights pursuant to this
Article IV shall not apply to any sale or issuance of Equity Securities (i) in
payment of the purchase price of assets acquired by the Company or any
Subsidiary, including any sale or issuance in connection with a merger, joint
venture, licensing transaction or exchange of shares, (ii) upon the grant of
Equity Securities to officers, employees, directors or consultants of the
Company or its Subsidiaries pursuant to any profit sharing, management stock
option or other management incentive plans (or the issuance of shares upon the
exercise of any rights under such grant), (iii) pursuant to a stock split,
combination or stock dividend, (iv) pursuant to the exercise of any right,
warrant, option, or convertible or exchangeable security, (v) pursuant to the
IPO, (vi) in connection with a third-party debt financing or (vii) pursuant to
the Original Subscription Agreements.
27
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Reimbursement of Expenses. The Company agrees to pay or
reimburse (i) the Sponsor Stockholders for (A) all reasonable costs and expenses
(including reasonable attorneys fees, charges, disbursement and expenses)
incurred in connection with any amendment, supplement, modification or waiver of
or to any of the terms or provisions of this Agreement, the Purchase Agreement
or any related agreements and (B) in connection with any stamp, transfer,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement, the Purchase
Agreement or any related agreements; and (ii) each Sponsor Stockholder for all
costs and expenses of such Stockholder (including reasonable attorneys fees,
charges, disbursement and expenses) incurred in connection with (1) the consent
to any departure by the Company or any of its Subsidiaries from the terms of any
provision of this Agreement, the Purchase Agreement or any related agreements
and (2) the enforcement or exercise by such Stockholder of any right granted to
it or provided for hereunder.
SECTION 5.2. Fiduciary Duties. To the extent permitted by Delaware
Law, notwithstanding anything to the contrary in this Agreement, each
Stockholder agrees that any fiduciary duty imposed under Delaware Law (including
the duty of loyalty and the duty of care) on the Sponsor Stockholders and the
Directors shall be defined, limited and eliminated as provided in this Section
5.2. (For the avoidance of doubt, this Section 5.2 is not intended to create any
duties on the part of any Stockholder who is not a Sponsor Stockholder but shall
also not be deemed to limit any duties which are otherwise imposed on such
Stockholder under Delaware law or which are created pursuant to an express
agreement with such Stockholder.)
(a) Certain Potential Conflicts. Each Stockholder acknowledges that:
(i) subject to Section 2.3(a)(vii), each Sponsor Stockholder and its
Affiliates may engage in material business transactions with the Company or
its Subsidiaries; and
(ii) the directors, officers, and/or employees of a Sponsor
Stockholder and its Affiliates may serve as directors, officers and/or
employees of the Company or its Subsidiaries.
(b) Limitation of Liability. To the fullest extent permitted by
Delaware Law, no Sponsor Stockholder or its respective Affiliates (excluding the
Company and its Subsidiaries) or any director, officer or employee of any
Sponsor Stockholder or its Affiliates (excluding the Company and its
Subsidiaries) who may serve as an officer, director and/or employee of the
Company or its Subsidiaries shall be liable to the Company or its Subsidiaries:
(i) by reason of any business decision or transaction undertaken by
such Sponsor Stockholder or its Affiliates which may be adverse to the
interests of the Company or its Subsidiaries;
28
(ii) by reason of any activity undertaken by such Sponsor Stockholder
or its Affiliates or by any other Person in which such Sponsor Stockholder
or their respective Affiliates may have an investment or other financial
interest which is in competition with the Company or its Subsidiaries; or
(iii) by reason of any transaction with such Sponsor Stockholder or
its Affiliates, or any transaction in which such Sponsor Stockholder or its
Affiliates shall have a financial interest, unless the party seeking to
assert such liability shall prove, by clear and convincing evidence, that
such transaction could not have been the product of rationale business
judgment at the time and under the circumstances it was authorized by the
Board or a committee thereof.
SECTION 5.3. No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Stockholders in this Agreement.
SECTION 5.4. Recapitalization, Exchanges, etc. In the event that any
capital stock or other securities are issued in respect of, in exchange for, or
in substitution of, any shares of Common Stock by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up, sale of assets, distribution to
Stockholders or combination of the shares of Common Stock or any other change in
capital structure of the Company, appropriate adjustments shall be made with
respect to the relevant provisions of this Agreement so as to fairly and
equitably preserve, as far as practicable, the original rights and obligations
of the parties hereto under this Agreement.
SECTION 5.5. Employment by the Company. Nothing contained in this
Agreement or any option agreement entered into by the Company and any Management
Stockholder (a) obligates the Company or any Subsidiary or Affiliate of the
Company to employ any Management Stockholder in any capacity whatsoever or (b)
prohibits or restricts the Company (or any such Subsidiary or Affiliate) from
terminating the employment of any Management Stockholder at any time or for any
reason whatsoever, with or without Cause, and each of the Management
Stockholders hereby acknowledges and agrees that neither the Company nor any
other Person has made any representations or promises whatsoever to such
Management Stockholder concerning such Management Stockholder's employment or
continued employment by the Company or any Subsidiary or Affiliate of the
Company.
SECTION 5.6. Taxes. The Company will have the right to deduct from any
cash payment made under this Agreement to any Management Stockholder any
federal, state or local income or other taxes required by law to be withheld
with respect to such payment.
SECTION 5.7. Term of Agreement. This Agreement shall terminate (a) in
full when all Stockholders cease to beneficially own any shares of Common Stock,
and, if earlier, (b) with respect to any particular Stockholder, when such
Stockholder ceases to beneficially own any shares of Common Stock; provided that
any termination pursuant to this Section 5.7 will not relieve any party for any
liability arising from a breach of representation, warranty, covenant or
agreement occurring prior to such termination.
29
SECTION 5.8. Inspection. So long as this Agreement shall be in effect,
this Agreement and any amendments hereto shall be made available for inspection
by a Stockholder at the principal offices of the Company.
SECTION 5.9. Amendments and Waivers. (a) Any amendment, supplement or
modification of or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any departure by any party from
the terms of any provision of this Agreement, shall be effective:
(i) only if it is made or given in writing and signed by (A)
Stockholders holding at least seventy-five percent (75%) of the shares of
Common Stock owned by all Stockholders and (B) each of Cypress and Goldman,
so long as it holds at least fifty percent (50%) of its Original Shares;
and
(ii) only in the specific instance and for the specific purpose for
which made or given;
provided that no such amendment, supplement or modification of or to any
provision of this Agreement, waiver of any provision of this Agreement, or
consent to any departure by any party from the terms of any provision of this
Agreement, shall be effective as to any Stockholder which shall not have
consented thereto in writing if the rights or obligations of such Stockholder
under this Agreement shall have been adversely affected thereby in any material
respect.
(b) No failure or delay on the part of any party hereto in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the parties hereto at law, in equity or
otherwise.
(c) Each of Cypress and Goldman hereby agrees not to consent to amend
this Agreement in order to modify or eliminate the right of its affiliated VCOC
Fund to appoint a Stockholder Designee without the consent of such affiliated
VCOC Fund.
SECTION 5.10. Successors, Assigns and Transferees. This Agreement
shall bind and inure to the benefit of and be enforceable by the parties hereto
and their respective successors and permitted assigns. Stockholders may assign
their respective rights and obligations hereunder to any Transferees only to the
extent expressly provided herein.
SECTION 5.11. Legend. (a) All certificates representing the shares of
Common Stock held by each Stockholder shall bear a legend substantially in the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
CERTAIN STOCKHOLDERS AGREEMENT DATED AS OF DECEMBER 23, 2004, AS THE
SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO
TIME IN ACCORDANCE WITH ITS TERMS, WHICH PROVIDES, AMONG OTHER THINGS,
FOR CERTAIN RESTRICTIONS ON THE
30
(I) VOTING AND (II) SALE, TRANSFER, PLEDGE, HYPOTHECATION, OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE. A COPY
OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE
CORPORATION AND WILL BE FURNISHED UPON REQUEST TO THE PURCHASER OR
PROSPECTIVE PURCHASER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE, AND NO SALE, ASSIGNMENT, TRANSFER,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND IN COMPLIANCE WITH
ALL APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS OR (B) IF THE
CORPORATION HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL WHICH SHALL
BE REASONABLY SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT SUCH
SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
IS NOT IN VIOLATION OF THE ACT OR APPLICABLE STATE SECURITIES LAWS."
(b) Upon the sale of any Common Stock pursuant to (i) an effective
registration statement under the Securities Act or pursuant to Rule 144 under
the Securities Act or (ii) another exemption from registration under the
Securities Act or upon the termination of this Agreement, the certificates
representing such Common Stock shall be replaced, at the expense of the Company,
with certificates or instruments not bearing the legends required by this
Section 5.11; provided that the Company may condition such replacement of
certificates under clause (ii) upon the receipt of an opinion of securities
counsel reasonably satisfactory to the Company.
(c) Upon execution of this Agreement, Common Stock presently held by
Stockholders that do not bear a legend as provided in Section 5.11 shall be
surrendered to the Company and such instruments shall be endorsed with said
legend and returned to the appropriate Stockholder.
SECTION 5.12. Notices. All notices and other communications required
or permitted hereunder shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be notified; (b) when sent by
confirmed facsimile if sent during normal business hours of the recipient, if
not, then on the next Business Day, provided that a copy of such notice is also
sent via nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt; (c) five (5) days after having been sent
by registered or certified mail, return receipt requested, postage prepaid; or
(d) one (1) Business Day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to such party's address as set forth
31
below or at such other address as the party shall have furnished to each other
party in writing in accordance with this provision:
If to the Company CSA Acquisition Corp.
c/o The Cypress Group L.L.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
(which shall not 000 Xxxxxxxxx Xxxxxx
constitute notice) Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
and
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
If to Cypress: The Cypress Group L.L.C.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
(which shall not 000 Xxxxxxxxx Xxxxxx
constitute notice) Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
If to Goldman: GS Capital Partners 2000, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
(which shall not One New York Plaza
constitute notice) Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
If to any other Stockholder: At the address set forth below such
Stockholder's signature hereto.
32
SECTION 5.13. Further Assurances. At any time or from time to time
after the date hereof, the parties agree to cooperate with each other, and at
the request of any other party, to execute and deliver any further instruments
or documents and to take all such further action as the other party may
reasonably request in order to evidence or effectuate the consummation of the
transactions contemplated hereby and to otherwise carry out the intent of the
parties hereunder.
SECTION 5.14. Entire Agreement. Except as otherwise expressly set
forth herein, this Agreement embodies the complete agreement and understanding
among the parties hereto with respect to the subject matter hereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, that may have related to the subject
matter hereof in any way.
SECTION 5.15. Confidentiality. (a) Each Stockholder recognizes and
acknowledges that the Company's trade secrets, proprietary information, and
Confidential Information, as they may exist from time to time, are valuable,
special and unique assets of the Company's business. Except as otherwise
required by law, each Stockholder agrees to hold as the Company's property, all
memoranda, books, papers, letters, and other data, and all copies thereof and
therefrom (including materials provided pursuant to Section 2.4), in any way
relating to the Company's business and affairs, whether made by such Stockholder
or otherwise coming into such Stockholder's possession, and at the time such
Stockholder ceases to be a Stockholder for any reason, to deliver the same to
the Company.
(b) Each Stockholder hereby agrees that such Stockholder will not at
any time during the period such Stockholder is a Stockholder or thereafter
disclose to any third party (other than in the ordinary course of business of
the Company) or use for the benefit of such Stockholder or any third party any
Confidential Information, except (i) as otherwise required by law, or (ii) as
previously authorized by the Board in writing.
(c) As used in this Agreement, "Confidential Information" shall mean
information which is not generally known to the public in the form available to
Stockholders and which was or is used, developed or obtained by the Company
relating to the business of the Company, or research and development, including,
but not limited to, all investor, client, portfolio company or customer lists,
marketing strategies and techniques, trade secrets, engineering or other
know-how or other information pertaining to the financial condition, business,
research and development or prospects of the Company.
SECTION 5.16. Optionholders to become Parties. The Company shall cause
any Person that is granted stock options to purchase shares of Common Stock by
the Company (an "Optionholder") but that is not already a Stockholder at the
time of such grant to become a party to this Agreement by executing a
counterpart to this Agreement or a written instrument agreeing to be bound by
the provisions hereof.
SECTION 5.17. Delays or Omissions. It is agreed that no delay or
omission to exercise any right, power or remedy accruing to any party, upon any
breach, default or
33
noncompliance by another party under this Agreement, shall impair any such
right, power or remedy, nor shall it be construed to be a waiver of any such
breach, default or noncompliance, or any acquiescence therein, or of or in any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
the part of any party hereto of any breach, default or noncompliance under this
Agreement or any waiver on such party's part of any provisions or conditions of
this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to any party, shall be cumulative and
not alternative.
SECTION 5.18. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE. Any claim arising out of or relating to this Agreement may be
instituted in Federal or State court in the State of New York (unless personal
or subject matter jurisdiction cannot be obtained therein), and each party
agrees not to assert, by way of motion, as a defense or otherwise, in any such
claim, that it is not subject personally to the jurisdiction of such court, that
the claim is brought in an inconvenient forum, that the venue of the claim is
improper or that this Agreement or the subject matter hereof may not be enforced
in or by such court. Each party further irrevocably submits to the jurisdiction
of such courts in any such claim. Any and all service of process and any other
notice in any such claim shall be effective against any party if given
personally or by registered or certified mail, return receipt requested, or by
any other means of mail that requires a signed receipt, postage prepaid, mailed
to such party as herein provided. Nothing herein contained shall be deemed to
affect the right of any party to serve process in any manner permitted by law or
to commence legal proceedings or otherwise against any other party in any other
jurisdiction.
SECTION 5.19. Effective Date. This Agreement shall become effective on
the date of, and simultaneously with, the closing of the transactions
contemplated by the Purchase Agreement (the "Effective Date").
SECTION 5.20. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
SECTION 5.21. Specific Performance. Each party hereto acknowledges
that money damages would not be an adequate remedy in the event that any of the
covenants or agreements in this Agreement are not performed in accordance with
its terms, and it is therefore agreed that in addition to and without limiting
any other remedy or right it may have, the non-breaching party will have the
right to an injunction, temporary restraining order or other equitable relief in
any court of competent jurisdiction enjoining any such breach and enforcing
specifically the terms and provisions hereof.
34
SECTION 5.22. Counterparts; Facsimile Signatures. This Agreement may
be executed in any number of counterparts, each of which shall be an original,
but all of which together shall constitute one instrument. This Agreement may be
executed by facsimile signature(s).
[Remainder of page left intentionally blank]
35
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of the date set forth in the first paragraph hereof.
CSA ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CYPRESS MERCHANT BANKING PARTNERS II L.P.
By: Cypress Associates II LLC, its general partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Member
CYPRESS MERCHANT B II C.V.
By: Cypress Associates II LLC, its managing general
partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Member
55th STREET PARTNERS II L.P.
By: Cypress Associates II LLC, its general partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Member
CYPRESS SIDE-BY-SIDE LLC
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Member
CSA Acquisition Corp. Stockholders Agreement
December 23, 2004
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C., its general partner
By: Xxxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxxx Sachs
Title: Managing Member
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C., its general partner
By: Xxxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxxx Sachs
Title: Managing Member
GS CAPITAL PARTNERS 2000 GMBH & CO. BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GP GmbH, its general
partner
By: Xxxxxxx Sachs
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Member
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
By: GS Employee Funds 2000 GP, L.L.C., its general
partner
By: Xxxxxxx Sachs
------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Member
XXXXXXX SACHS DIRECT INVESTMENT FUND 2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C., its general
partner
By: Xxxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxxx Sachs
Title: Managing Member
CSA Acquisition Corp. Stockholders Agreement
December 23, 2004
X.X. XXXXXXX
/s/ X.X. Xxxxxxx
----------------------------------------------------
XXXXXXX X. WAY
/s/ Xxxxxxx X. Way
----------------------------------------------------
XXXXX X. XxXXXX
/s/ Xxxxx X. XxXxxx
----------------------------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------------------
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------------------
XXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx
----------------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
----------------------------------------------------
XXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxxxx
----------------------------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------------------
CSA Acquisition Corp. Stockholders Agreement
December 23, 2004
XXXXXXX X. XXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------------------------
CSA Acquisition Corp. Stockholders Agreement
December 23, 2004
ANNEX I
MANAGEMENT STOCKHOLDERS
Xxxxx X. XxXxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
CSA Acquisition Corp. Stockholders Agreement
December 23, 2004
ANNEX II
DIRECTOR STOCKHOLDERS
X.X. Xxxxxxx
Xxxxxxx X. Way
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Pursuant to the Stockholders Agreement, dated as of December 23, 2004
(the "Stockholders Agreement"), by and among CSA Acquisition Corp., a Delaware
corporation (the "Company"), and each of the stockholders of the Company whose
name appears on the signature pages listed therein (each, a "Stockholder" and
collectively, the "Stockholders"), _____________, (the "Transferor") hereby
assigns to the undersigned the rights that may be assigned thereunder with
respect to the Common Stock so Transferred, and the undersigned hereby agrees
that, having acquired Common Stock as permitted by the terms of the Stockholders
Agreement, the undersigned shall assume the obligations of the Transferor under
the Stockholders Agreement with respect to the Common Stock so Transferred.
Capitalized terms used but not defined herein shall have the meanings assigned
to them in the Stockholders Agreement.
Listed below is information regarding the Common Stock:
Number of Shares of
Common Stock
-------------------
-------------------
IN WITNESS WHEREOF, the undersigned has executed this Assignment and
Assumption Agreement as of __________ ___, 20__.
[NAME OF TRANSFEREE]
-----------------------------------
Name:
Title:
Acknowledged by:
CSA ACQUISITION CORP.
By:
------------------------------
Name:
Title:
