EXHIBIT 10.5
EXECUTION COPY
STOCKHOLDERS AGREEMENT
OF
SUNSHINE ACQUISITION CORPORATION
This Stockholders Agreement ("Agreement") is entered into as of this
23rd day of November, 2005, by and among Sunshine Acquisition Corporation, a
Delaware corporation (the "Company"), Carlyle Partners IV, L.P., a Delaware
limited partnership ("XX XX"), XX XX Coinvestment, L.P., a Delaware limited
partnership ("Coinvestment", and, together with XX XX, the "Initial Carlyle
Stockholders"), Xxxxxxx X. Xxxxx, an individual ("Executive"), and the other
executive employees that hold shares of Common Stock (as defined herein) or
Vested Options (as defined below) that become a party hereto from time to time
by executing a supplemental signature page hereto in the form attached as
Exhibit A hereto (each such holder individually, an "Other Executive
Stockholder," and collectively, the "Other Executive Stockholders"). Certain
capitalized terms used herein without definition have the meanings ascribed to
them in Section 10 hereof.
RECITALS:
Reference is made to that certain Contribution and Subscription
Agreement, dated as of July 28, 2005, by and between the Company and Executive
(the "Contribution Agreement");
WHEREAS, as a condition to consummating the transactions contemplated
by the Contribution Agreement, the Company, the Initial Carlyle Stockholders and
Executive are executing this Agreement;
WHEREAS, (i) certain Executive Stockholders (a) hold shares of common
stock, par value $0.01 per share, of the Company ("Common Stock") and/or (b)
have been or may hereafter be issued shares of Common Stock pursuant to the
exercise by such Executive Stockholders of vested options to purchase Common
Stock ("Vested Options"), which such options (i) were issued in exchange for
options to purchase common stock of SS&C Technologies, Inc., a Delaware
corporation ("SS&C"), pursuant to the Agreement and Plan of Merger, dated as of
July 28, 2005, as amended August 25, 2005, by and among the Company, Sunshine
Merger Corporation, a Delaware corporation and a wholly owned subsidiary of the
Company, and SS&C (the "Assumed Options") or (ii) may hereafter be issued
pursuant to any stock option plans or other employee benefit plans, in either
case, now in effect or hereafter adopted by the board of directors of the
Company (the "Board", and each director, a "Director") or pursuant to other
arrangements approved by the Board; and (ii) the Initial Carlyle Stockholders
hold shares of Common Stock (the shares of Common Stock issued or that are
hereafter issued to the Stockholders being collectively referred to as the
"Shares" and, together with the Vested Options, and any other vested rights
issued by the Company to the Stockholders to acquire Common Stock, the "Equity
Securities"); and
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WHEREAS, the Parties hereto desire to promote the interests of the
Company and the mutual interests of the Stockholders by establishing herein
certain terms and conditions upon which the Equity Securities will be held,
including provisions restricting the transfer of such, and providing for other
matters.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Restrictions on Transfer.
Except for (i) Transfers effected by Transferring Stockholders
exercising Bring-Along Rights pursuant to Section 2 or any Transfer effected in
connection with a Company Sale pursuant to Section 2; (ii) Transfers effected by
Selling Stockholders pursuant to the exercise of Bring-Along Rights pursuant to
Section 2 by another Stockholder; (iii) Transfers effected by Stockholders
pursuant to the exercise of Tag-Along Rights pursuant to Section 3; (iv)
Transfers effected pursuant to the Registration Rights Agreement, dated as of
the date hereof, by and among the Initial Carlyle Stockholders, Executive and
the Other Executive Stockholders; and (v) any Permitted Transfer, no Stockholder
shall Transfer any Equity Securities without the prior written approval of a
majority of the members of the Board, which such majority shall include an
Executive Designee. Each Stockholder further agrees that, in connection with any
Permitted Transfer or any Transfer approved by the Board, such Stockholder
shall, if requested by the Company, deliver to the Company an opinion of
counsel, in form and substance reasonably satisfactory to the Company and
counsel for the Company, to the effect that such Transfer is not in violation of
this Agreement, the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the "Securities Act"), or the securities
laws of any state. Any purported Transfer in violation of the provisions of this
Section 1 shall be null and void and shall have no force or effect. It shall be
a condition to any Permitted Transfer or any Transfer approved by the Board
(other than any Transfer pursuant to Rule 144 promulgated under the Securities
Act approved by the Board) that the transferee shall (i) agree to become a party
to this Agreement as a Carlyle Stockholder (if such Transfer is effected by a
Carlyle Stockholder) or as an Executive Stockholder (if such transfer is
effected by an Executive Stockholder), as the case may be, and (ii) execute a
signature page in the form attached as Exhibit A hereto acknowledging that such
transferee agrees to be bound by the terms hereof.
Section 2. Bring-Along Rights.
(a) If, on or after the earlier of (i) the second anniversary of the
date hereof and (ii) the date that Executive ceases to be Chief Executive
Officer of the Company (the earlier of the date referred to in the preceding
clauses (i) and (ii) being referred to as the "Bring-Along Date"), one or more
Stockholders, in one transaction or a series of related transactions, proposes
to Transfer fifty percent (50%) or more of the Shares then collectively held by
all Stockholders
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to one or more Persons other than Permitted Transferees (each such Person, a
"Third Party Purchaser"), then such Stockholder(s) (the "Transferring
Stockholder(s)") shall have the right (a "Bring-Along Right"), but not the
obligation (subject to Section 3 hereof), to require each other Stockholder
(each, a "Selling Stockholder") to tender for purchase to the Third Party
Purchaser(s), on the same terms and conditions as apply to the Transferring
Stockholder(s) (provided, however, that (i) in the event that the Transferring
Stockholder(s) are granted the right to appoint only one director of any Person
in connection with such Transfer, the Transferring Stockholders shall be
entitled to designate such member of the board of directors of such Person and
(ii) in the event that any portion of the consideration payable in connection
with such Transfer is in a form other than cash and Executive refuses to accept
such non-cash consideration pursuant to Section 2(h), at the election of the
Transferring Stockholders, the consideration payable to Executive in connection
with such Transfer may consist solely of cash in an amount per share equal to
the fair market value (determined based on the manner in which the value of the
non-cash consideration was determined in connection with such transaction) of
the per share consideration received by the Transferring Stockholders), a number
of Equity Securities (including any options that vest as a result of the
consummation of such Transfer to such Third Party Purchaser(s)) that, in the
aggregate, equal the number derived by multiplying (A) the total number of
Equity Securities owned by such Selling Stockholder (including any options that
vest as a result of the consummation of such Transfer to such Third Party
Purchaser(s)); by (B) a fraction, the numerator of which is the total number of
shares of Common Stock to be sold by such Transferring Stockholder(s) in
connection with such transaction or series of related transactions, and the
denominator of which is the total number of the then-outstanding shares of
Common Stock collectively held by the Transferring Stockholder(s). For purposes
of this Section 2 and Section 3 hereof, the phrase "number of Equity Securities"
held by any Person or group of Persons shall mean the number of Shares held by
such Person or group of Persons plus the number of shares of Common Stock
issuable upon exercise of Vested Options held by such Person or group of
Persons.
(b) If any Transferring Stockholder elects to exercise its Bring-Along
Right under this Section 2 with respect to the Equity Securities held by any
Selling Stockholder, then it shall so notify such Selling Stockholder in writing
(a "Bring-Along Notice"). Each Bring-Along Notice shall set forth: (i) the name
of the Third Party Purchaser(s) and the number of shares of Common Stock
proposed to be sold by the Transferring Stockholder(s) to such Third Party
Purchaser(s); (ii) the proposed amount and form of consideration and material
terms and conditions of payment offered by the Third Party Purchaser(s) and a
summary of any other material terms pertaining to the Transfer ("Third Party
Terms"); and (iii) the number of Equity Securities that such Selling Stockholder
shall be required to sell in such Transfer (as determined in accordance with
Section 2(a) above). The Bring-Along Notice shall be given at least fifteen (15)
days before the closing of the proposed Transfer.
(c) Upon the giving of a Bring-Along Notice, such Selling Stockholder
shall be obligated to sell such number of Equity Securities as is set forth in
the Bring-Along Notice on the Third Party Terms.
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(d) At the closing of the Transfer to any Third Party Purchaser(s)
pursuant to this Section 2, the Third Party Purchaser(s) shall remit to such
Selling Stockholder (i) the consideration for the total sales price of the
Equity Securities held by such Selling Stockholder sold pursuant hereto, minus
(ii) such Selling Stockholder's pro rata portion of the consideration to be
escrowed or otherwise held back, if any, in accordance with the Third Party
Terms, minus (iii) the aggregate exercise price of any Vested Options being
Transferred by such Selling Stockholder to such Third Party Purchaser(s),
against delivery by such Selling Stockholder of (i) certificates for such
Shares, duly endorsed for Transfer or with duly executed stock powers reasonably
acceptable to the Company, and/or (ii) an instrument evidencing the Transfer or
the cancellation of the Vested Options subject to the Bring-Along Right
reasonably acceptable to the Company, and the compliance by such Selling
Stockholder with any other conditions to closing generally applicable to the
Transferring Stockholder(s) and all other holders of Common Stock selling shares
in such transaction, and which transaction will not subject Executive to any
liability other than (i) Executive's pro rata share of any liability to which
the holders of Equity Securities are subject in connection with such liability
and (ii) liabilities in respect of any representation, warranty or indemnity
with respect to the title and ownership of the Equity Securities being sold by
Executive. In the event that the proposed Transfer of the Common Stock to such
Third Party Purchaser is not consummated, the Bring Along Right shall continue
to be applicable to any proposed subsequent Transfer of the Common Stock by any
Stockholder(s) pursuant to this Section 2.
(e) In the event that (i) any Transferring Stockholder exercises its
rights pursuant to this Section 2, or (ii) subsequent to the Bring-Along Date, a
Company Sale is approved by the Board and the holders of fifty percent (50%) or
more of the then-outstanding Shares, each Stockholder shall consent to and raise
no objections against such transaction, and if any such transaction is
structured as a sale of stock, each Stockholder shall take all actions that the
Board and/or the Transferring Stockholder(s) reasonably deem necessary or
desirable in connection with the consummation of such transaction. Without
limiting the generality of the foregoing, each Stockholder agrees that it (i)
shall consent to and raise no objections against such transaction; (ii) shall
execute any Common Stock purchase agreement, merger agreement or other agreement
entered into with the purchaser with respect to such transaction setting forth
the Third Party Terms and any ancillary agreement with respect thereto; (iii)
shall vote the Common Stock held by such Stockholder in favor of such
transaction (including executing a written consent of stockholders approving
such transaction); and (iv) shall refrain from the exercise of dissenters'
appraisal rights with respect to such transaction.
(f) If the Company or the holders of the Company's securities enter
into any negotiation or transaction for which Rule 506 (or any similar rule then
in effect) promulgated under the Securities Act, may be available with respect
to such negotiation or transaction (including a merger, consolidation, or other
reorganization), each Stockholder shall, if requested by the Company, appoint a
purchaser representative (as such term is defined in Rule 501 of the Securities
Act) reasonably acceptable to the Company. If such purchaser representative was
designated by the Company, the Company shall pay the fees of such purchaser
representative,
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but if any Stockholder appoints another purchaser representative, such
Stockholder shall be responsible for the fees of the purchaser representative so
appointed.
(g) Each Stockholder shall bear its pro rata share of the costs of any
Company Sale or other transaction (pursuant to this Agreement or otherwise) in
which it sells Equity Securities to the extent such costs are incurred for the
benefit of all holders of Equity Securities and are not otherwise paid by the
Company or the acquiring party.
(h) Notwithstanding the foregoing, Executive shall not be required to
Transfer Equity Securities pursuant to this Section 2 unless (i) 90% of the
consideration received or to be received by Executive in connection with such
Transfer is in the form of cash (it being understood that cash consideration, if
any, held back or held in escrow to secure payment of indemnification or other
obligations shall not be considered non-cash consideration) or (ii) 100% of the
consideration received or to be received by Executive in connection with such
Transfer is in the form of cash and/or Publicly Traded Stock (it being
understood that cash consideration or Publicly Traded Stock, if any, held back
or held in escrow to secure payment of indemnification or other obligations
shall not be considered non-cash consideration or consideration other than
Publicly Traded Stock, as applicable); provided that the shares of Publicly
Traded Stock received by Executive in connection with such Transfer (i) do not
represent more than 1% of the outstanding shares of capital stock of the issuer
of such Publicly Traded Stock; (ii) are not subject to contractual restrictions
on transfer; and (iii) have been registered under the Securities Act or are
contractually required to be registered under the Securities Act within ninety
(90) days of Executive's receipt thereof or are freely saleable to the public
without registration under the Securities Act pursuant to Rule 144 or Rule 145
promulgated under the Securities Act or otherwise within 90 days of receipt of
such shares by Executive.
Section 3. Tag-Along Right.
(a) In the event that any Stockholder(s) ( "Initiating
Stockholder(s)") propose, in accordance with the terms of this Agreement, to
Transfer capital stock of the company to a Third Party Purchaser, then each
other Stockholder shall have the right (the "Tag-Along Right") to request that
the proposed Third Party Purchaser purchase from such Stockholder (each a
"Tagging Stockholder") up to the number of whole Equity Securities equal to the
number derived by multiplying (x) the total number of shares of Common Stock
that the proposed Third Party Purchaser has agreed or committed to purchase plus
the total number of shares of Common Stock that are issuable upon conversion,
exercise or exchange of Vested Options or Convertible Securities that the
proposed Third Party Purchaser has agreed or committed to purchase, by (y) a
fraction, the numerator of which is the total number of Equity Securities
(including any options that vest as a result of the consummation of such
Transfer to such Third Party Purchaser but excluding (i) shares issuable upon
the exercise of unvested options and (ii) any Vested Options that have an
exercise price per share of Common Stock greater than the price per share of
Common Stock to be paid by the Third Party Purchaser) owned by such Tagging
Stockholder, and the denominator of which is the aggregate number of shares of
Common Stock collectively owned by the Initiating Stockholders and their
Affiliates, the Tagging Stockholder and all other holders of Common Stock plus
the aggregate number of shares of Common Stock issuable upon
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conversion, exercise or exchange of Vested Options and Convertible Securities
(excluding (i) shares issuable upon the exercise of unvested options and (ii)
any Vested Options or other Convertible Securities that have an exercise or
conversion price per share of Common Stock greater than the price per shares of
Common Stock to be paid by the Third Party Purchaser) owned by all Initiating
Stockholder(s) and their Affiliates, the Tagging Stockholder and all other
holders of Common Stock, Vested Options, or other Convertible Securities. Any
Equity Securities purchased from the Tagging Stockholders pursuant to this
Section 3(a) shall be purchased at the same price per share of Common Stock
(less, in the case of a Vested Option, the exercise price thereof) and upon the
same terms and conditions as such proposed Transfer by the Initiating
Stockholder(s) (provided, however, that in the event that the Initiating
Stockholder(s) are granted the right to appoint only one director of any Person
in connection with such Transfer, the Initiating Stockholder(s) shall be
entitled to designate such member of the board of directors of such Person).
(b) The Initiating Stockholder(s) shall notify each other Stockholder
in writing in the event such Initiating Stockholder(s) propose to make a
Transfer or series of Transfers giving rise to the Tag-Along Right at least
fifteen (15) business days prior to the date on which such Initiating
Stockholder(s) expect to consummate such Transfer (the "Sale Notice") which
notice shall specify the number of shares of Common Stock which the Third Party
Purchaser intends to purchase in such Transfer. The Tag-Along Right may be
exercised by any Stockholder by delivery of a written notice to the Initiating
Stockholder(s) proposing to sell securities of the Company (the "Tag-Along
Notice") within ten (10) business days following receipt of the Sale Notice from
such Initiating Stockholder(s). The Tag-Along Notice shall state the number of
Equity Securities that the Tagging Stockholder proposes to include in such
Transfer to the proposed Third Party Purchaser (not to exceed the number as
determined above). In the event that the proposed Third Party Purchaser does not
purchase the specified number of Equity Securities from the Tagging Stockholders
at the same price per share of Common Stock (less, in the case of a Vested
Option, the exercise price thereof) and on the same terms and conditions as such
proposed Transfer by the Initiating Stockholders (provided, however, that in the
event that the Initiating Stockholder(s) are granted the right to appoint only
one director of any Person in connection with such Transfer, the Initiating
Stockholder(s) shall be entitled to designate such member of the board of
directors of such Person), then the Initiating Stockholders shall not be
permitted to sell any shares of Common Stock to the proposed Third Party
Purchaser unless such Initiating Stockholder(s) purchase from the Tagging
Stockholder such specified number of Equity Securities on the same terms and
conditions as specified in such Sale Notice.
(c) At the closing of the Transfer to any Third Party Purchaser
pursuant to this Section 3, the Third Party Purchaser shall remit to each
Tagging Stockholder exercising his rights under this Section 3 (x) the
consideration for the total sales price of the Equity Securities (calculated in
the manner set forth above) held by such Tagging Stockholder sold pursuant
hereto, minus (y) the aggregate exercise price of any Vested Options being
Transferred by such Tagging Stockholder to such Third Party Purchaser(s), minus
(z) such Tagging Stockholder's pro rata portion of any such consideration to be
escrowed or otherwise held back, if any, in accordance with the Third Party
Terms, against delivery by such Tagging Stockholder of
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certificates for such Shares subject to the Tag Along Right, duly endorsed for
Transfer or with duly executed stock powers reasonably acceptable to the
Company, and/or an instrument evidencing the Transfer or the cancellation of the
Vested Options being sold reasonably acceptable to the Company, and the
compliance by such Tagging Stockholder with any other conditions to closing
generally applicable to the Initiating Stockholder(s) and all other holders of
Common Stock, Vested Options or Convertible Securities selling securities in
such transaction.
Section 4. Preemptive Rights.
(a) The Company hereby grants to each Stockholder the right to
purchase, in accordance with the procedures set forth in this Section 4, such
Stockholder's pro rata portion of any New Securities (as defined below) which
the Company may propose to sell and issue. A Stockholder's pro rata portion, for
purposes of this Section 4, is the ratio of (i) the number of Shares (other than
shares issued or issuable upon the exercise of Vested Options or Convertible
Securities) held by such Stockholder immediately prior to any proposed issuance
and sale to (ii) the aggregate number of shares of Common Stock issued and
outstanding immediately prior to such proposed issuance and sale (other than
shares issued or issuable upon the exercise of Vested Options or Convertible
Securities). As used herein, "New Securities" shall mean shares of Common Stock
or other equity securities of the Company, whether now or hereinafter
authorized, any rights, options or warrants to purchase shares of Common Stock
and any securities of any kind whatsoever that are, or may become, convertible
into or exchangeable for such shares of Common Stock or other equity securities
of the Company; provided, however, that the preemptive right provided by this
Section 4 shall apply to the issuance of the right, warrant, option or
convertible or exchangeable security and not to the issuance of shares of Common
Stock or other securities issuable upon conversion, exchange or exercise
thereof; and provided, further, that the term "New Securities" shall not include
the issuance of shares of Common Stock or other securities (i) pursuant to the
acquisition of another Person by the company, whether by purchase of stock,
merger, consolidation, purchase of all or substantially all of the assets of
such Person or otherwise, including issuances to management of such Person in
connection therewith, (ii) in exchange for debt securities of the Company, (iii)
in connection with a debt financing or issuance of debt securities of the
Company, (iv) in connection with any stock split, dividend or recapitalization,
(v) in connection with a joint venture or strategic relationship, (vi) to
officers, employees, directors or consultants of the Company or its Affiliates
pursuant to any stock option, stock purchase or other equity compensation plans
in connection with such Person's employment or consulting arrangements with the
Company or its subsidiaries or (vi) in connection with an IPO.
(b) In the event the Company proposes to issue New Securities, it
shall give each Stockholder written notice of its intention, describing the type
of New Securities, the price and the general terms upon which the Company
proposes to issue the same (the "New Securities Notice"). Each Stockholder shall
have ten (10) days from the date of receipt of any such notice to agree to
purchase such Stockholder's pro rata share of such New Securities for the price
specified in the notice by giving written notice to the Company and stating
therein the quantity of New Securities to be purchased.
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(c) Promptly upon the expiration of the period of twenty (20) days
following receipt of the New Securities Notice, the Company shall, in writing,
inform each Stockholder which elects to purchase all of the New Securities
available for purchase by such Stockholder pursuant to the preemptive rights
described in Section 4(a) above of the failure of any other Stockholder to
likewise purchase all of the New Securities available for purchase pursuant to
such preemptive rights. During the period of ten (10) days commencing after the
receipt of such information, each fully-exercising Stockholder shall have the
right to elect to purchase up to its proportionate share of the shares of Common
Stock not subscribed for by such non-subscribing holders based on the ratio
which (i) the Shares (other than shares issued or issuable upon the exercise of
Vested Options or Convertible Securities) owned by the fully-exercising
Stockholder bears to (ii) the Shares (other than shares issued or issuable upon
the exercise of Vested Options or Convertible Securities) owned by all
fully-exercising Stockholders.
(d) In the event any Stockholder fails to exercise its preemptive
rights with respect to all or any part of the portion of the New Securities
proposed to be sold by the Company within such twenty (20) day period, and no
other Stockholder has elected to purchase such New Securities pursuant to the
over-subscription option set forth in Section 4(c) above, the Company shall have
one hundred eighty (180) days thereafter to issue and sell or enter into an
agreement to issue and sell the New Securities with respect to which such
Stockholder's rights were not exercised, at a price and on terms no more
favorable than those set forth in the New Securities Notice. In the event the
Company has not sold such New Securities within such period, the Company shall
not thereafter issue or sell any New Securities without first re-offering such
securities to the Stockholders in the manner provided above.
Section 5. Permitted Transfers.
Anything herein to the contrary notwithstanding, the provisions of the
first sentence of Section 1 shall not apply to: (a) any Transfer of Shares by a
Stockholder by gift to, or for the benefit of, any member or members of his or
her immediate family (which shall include any spouse, lineal ancestor or
descendant or sibling) or to a trust, partnership or limited liability company
for the benefit of such members; provided that such Stockholder shall retain
sole and exclusive control over the voting and disposition of said Shares until
the termination of this Agreement; (b) any Transfer of Shares by an Executive
Stockholder to the heirs, executors or legatees of such Stockholder by operation
of law upon the death or incapacity of such Executive Stockholder; or (c) any
Transfer of Shares by a Carlyle Stockholder to an Affiliate or any partner,
member or stockholder of such Carlyle Stockholder (each of the Transfers
referenced in clauses (a), (b) and (c) above being referred to herein as a
"Permitted Transfer"); provided that, in each case, such Transfer is effected in
compliance with all of the provisions of Section 1 hereof other than the
restrictions contained in the first sentence of Section 1 hereof. The recipient
of any Shares pursuant to the foregoing shall be referred to herein as a
"Permitted Transferee" and shall be deemed a Carlyle Stockholder (if such
Transfer is effected by a Carlyle Stockholder) or an Executive Stockholder (if
such transfer is effected by an Executive Stockholder), as the case may be, for
all purposes of this Agreement.
Section 6. Right of First Negotiation.
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Prior to the earlier of (i) the second anniversary of the date hereof and
(ii) the consummation of a public offering of Common Stock pursuant to a
registration statement filed in accordance with the Securities Act (an "IPO"),
no Carlyle Stockholder shall Transfer any Equity Securities to a Third Party
Purchaser (other than as a Tagging Stockholder pursuant to the provisions of
Section 3) except as set forth below:
(a) Prior to any Transfer of Equity Securities by any Carlyle Stockholder
to a Third Party Purchaser (such transferring Stockholder, an "Offering
Holder"), in accordance with the terms of this Agreement, the Offering Holder
shall deliver to Executive (the "ROFO Recipient") written notice (the "Offer
Notice"), stating such Offering Holder's intention to effect such a Transfer,
the number of Equity Securities subject to such Transfer (the "Offered
Securities"), and the material terms and conditions of the proposed Transfer
(other than price). The Offer Notice may require that the consummation of any
sale of the Offered Securities to the ROFO Recipients occur on a date that is no
less than 30 days, and no later than 60 days, after the date of the Offer
Notice.
(b) Upon receipt of the Offer Notice, the ROFO Recipient shall have 15 days
to offer to purchase from the Offering Holder on the terms and conditions
described in the Offer Notice, all, but not less than all, of the Offered
Securities, by sending irrevocable written notice of such offer to the Offering
Holder and the Company stating the ROFO Recipient's intention to purchase all of
the Offered Securities and the price that the ROFO Recipient proposes to pay for
the Offered Securities. For a period of ten (10) days after receipt by the
Offering Holder of such notice, the Offering Holder and ROFO Recipient shall
negotiate in good faith for a ten (10) day period (provided that such obligation
to negotiate in good faith shall not obligate the Offering Holder to accept any
price offered by the ROFO Recipient or obligate the ROFO Recipient to agree to
pay any price proposed by the Offering Holder). Prior to the expiration of such
10 day period, the ROFO Recipient may make a final offer (the "ROFO Offer") to
purchase all but not less than all of the Offered Securities on the terms and
conditions set forth in the Offer Notice by providing the Offering Holder
written notice (the "ROFO Offer Notice") of the ROFO Recipient's intention to
purchase the Offered Securities setting forth the price that the ROFO Recipient
intends to pay for the Offered Securities (the "ROFO Price"). Within 15 days of
receipt of a ROFO Offer Notice, the Offering Holder shall indicate to the ROFO
Recipient whether it has accepted the ROFO Offer by sending irrevocable written
notice of such acceptance to the ROFO Recipient and the Company, and the ROFO
Recipient shall then be obligated to purchase, and the Offering Holder shall
then be obligated to sell, the Offered Securities on the terms and conditions
set forth in the Offer Notice at the ROFO Price.
(c) If the ROFO Recipient does not make a ROFO Offer to purchase all of the
Offered Securities pursuant to this Section 6, or if the Offering Holder does
not elect to sell all of the Offered Securities to the ROFO Recipient pursuant
to this Section 6, then the Offering Holder shall be free for a period of six
months from the date the ROFO Offer Notice from the ROFO Recipient was due to be
received by the Offering Holder to enter into definitive agreements to Transfer
the Offered Securities to a Third Party Purchaser for consideration
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having a value greater than the ROFO Price and to transfer the Offered
Securities pursuant to such definitive agreements.
(d) If the ROFO Recipient does not make a ROFO Offer to purchase all of the
Offered Securities pursuant to this Section 6, or if the Offering Holder does
not elect to sell all of the Offered Securities to the ROFO Recipient pursuant
to this Section 6, and the Offering Holder has not entered into a definitive
agreement described in Section 6(d) within six months from the date the ROFO
Offer Notice from the ROFO Recipient was due to be received by the Offering
Holder, then the provisions of this Section 6 shall again apply, and such
Offering Holder shall not Transfer or offer to Transfer such Equity Securities
without again complying with this Section 6.
(e) Upon exercise by the ROFO Recipient of its right of first negotiation
and the acceptance by the Offering Holder of such offer under this Section 6,
the ROFO Recipient and the 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.
(f) The restrictions set forth in this Section 6 are in addition to (and
not in lieu of) the restrictions set forth in Section 1.
(g) The rights of the Executive set forth in this Section 6 shall terminate
at such time as the Executive is deceased or incapacitated due to mental or
physical illness, as determined by the majority of the members of the Board.
Section 7. Board of Directors.
(a) Nomination. The Company and the Stockholders shall take such
action as may be required under applicable law to cause the Board to initially
consist of six (6) Directors. The Stockholders and the Company agree that (i)
the Carlyle Stockholders shall collectively be entitled to nominate for election
to the Board four (4) Directors (the "Carlyle Designees"); and (ii) the Chief
Executive Stockholders shall collectively be entitled to nominate for election
to the Board two (2) Directors (the "Executive Designees"), one of whom shall be
Executive for so long as Executive is the Chief Executive Officer of the
Company; provided, however, that (A) the number of Carlyle Designees shall be
reduced to (x) three (3) Directors at such time as the Carlyle Stockholders hold
less than 40% of the then-outstanding shares of Common Stock, (y) two (2)
Directors at such time as the Carlyle Stockholders hold less than 30% of the
then-outstanding shares of Common Stock and (z) one (1) Director at such time as
the Carlyle Stockholders hold less than 15% of the then-outstanding shares of
Common Stock and (B) the number of Executive Designees shall be reduced to one
(1) at such time as Executive holds less than 15% of the then-outstanding shares
of Common Stock. So long as the Carlyle Stockholders shall be entitled to
nominate directors for election to the Board pursuant to this Section 7(a), CP
Stockholder Agreement - 7
10
IV shall be entitled to designate at least one of the Carlyle Designees. At the
option of the Carlyle Stockholders, the Carlyle Stockholders may, by written
notice to the Company, designate the Carlyle Stockholder(s) that have the right
to nominate the individual Carlyle Designees. For so long as Executive serves as
a member of the Board, Executive shall be a member of any Executive Committee of
the Board.
(b) Voting Agreement. At each election of Directors held after the
date hereof (or each written consent in lieu thereof), each Stockholder agrees
to vote all Shares owned or held of record by such Stockholder to elect (or to
execute such written consent consenting to the election of) the nominees
designated pursuant to subsection (a) above. The voting agreements contained
herein are coupled with an interest and may not be revoked or amended except as
set forth in this Agreement.
(c) Removal. If the Carlyle Stockholders provide written notice to
each other Stockholder indicating that such holders desire to remove, with or
without cause, a Director designated by the Carlyle Stockholders, then such
Director shall be removed, with or without cause, and each Stockholder hereby
agrees to vote all Shares owned or held of record by Stockholder to effect such
removal. Notwithstanding the foregoing, no Director designated by the Carlyle
Stockholders shall be removed, with or without cause, without the prior written
consent of the Carlyle Stockholders. If Executive provides written notice to
each other Stockholder indicating that Executive desires to remove, with or
without cause, a Director designated by Executive, then such Director shall be
removed, with or without cause, and each Stockholder hereby agrees to vote all
Shares owned or held of record by such Shareholder to effect such removal.
Notwithstanding the foregoing, no Director designated by Executive shall be
removed, with or without cause, without the prior written consent of Executive.
(d) Vacancies. In the event that a vacancy is created on the Board at
any time by death, disability, retirement, resignation or removal (with or
without cause) of a Director designated by the Carlyle Stockholders, each
Stockholder hereby agrees to vote all Shares owned or held of record by it for
the individual designated to fill such vacancy by the Carlyle Stockholders. In
the event that a vacancy is created on the Board at any time by death,
disability, retirement, resignation or removal (with or without cause) of a
Director designated by Executive, each Stockholder hereby agrees to vote all
Shares owned or held of record by it for the individual designated to fill such
vacancy by Executive.
(e) Governance Expenses. From and after the date hereof, the bylaws of
the Company shall provide that any Director may call a meeting of the Board, and
the Company shall reimburse Directors for reasonable travel, lodging and related
expenses incurred in connection with meetings of the Board or otherwise in
service as a Director.
(f) Restrictions and Limitations. The Company shall not, and shall not
permit any of its subsidiaries to, without the approval, by vote or written
consent, of the majority of the members of the Board, which such majority shall,
subject to the last paragraph of this Section 7(f), include an Executive
Designee:
Stockholder Agreement - 7
11
(i) enter into any transaction between the Company, on the one
hand, and any Stockholder or any Affiliate of such Stockholder, on the
other (other than payment of fees and reimbursement of expenses as provided
in the Carlyle Management Agreement and the employment agreement in effect
on the date hereof between the Company and Executive (the "Executive
Employment Agreement");
(ii) amend, repeal or alter the certificate of incorporation or
bylaws of the Company in any manner that adversely affects the rights of
any Stockholder;
(iii) increase or decrease the number of Directors comprising the
Board;
(iv) (x) acquire all or substantially all of the assets, capital
stock or other equity interests of any Person or (y) except as part of a
Company Sale (as described in Section 2(e)), sell or dispose of the assets
of the Company or issue capital stock or other equity interests of any
subsidiary of the Company (other than sale of assets in the ordinary course
of business), in each case referred to in clause (x) and (y) for
consideration having a fair market value (as reasonably determined by the
Board) in excess of $50,000,000; or
(v) prior to the Bring-Along Date, engage in a Company Sale.
Notwithstanding the foregoing, (i) if Executive is not the Chief
Executive Officer of the Company (other than by reason of termination of
Executive's employment by the Company without "cause" (as such term is defined
in the Executive Employment Agreement)), an Executive Designee's approval shall
not be required with respect to the actions contemplated by clause (iv) of this
Section 7(f), (ii) if Executive is not the Chief Executive Officer of the
Company by reason of termination of Executive's employment by the Company
without "cause" (as such term is defined in the Executive Employment Agreement)
and one (1) year has passed since such termination of Executive's employment, an
Executive Designee's approval shall not be required with respect to the actions
contemplated by clause (iv) of this Section 7(f) and (iii) if Executive is
deceased or incapacitated due to mental or physical illness, as determined by
the majority of the members of the Board, an Executive Designee's approval shall
not be required with respect to the actions contemplated by clause (iii) of this
Section 7(f).
(g) Chairman; Committees. So long as Executive is a member of the
Board and the Chief Executive Officer of the Company, Executive shall serve as
the Chairman of the Board. The chairman of any committee of the Board shall be
designated by the Carlyle Stockholders.
(h) Termination of Rights. The rights of the Carlyle Stockholders
under this Section 7 shall terminate at such time as the number of shares of
Common Stock held by the Carlyle Stockholders represents less than 10% of the
shares of Common Stock then outstanding. The rights of Executive under this
Section 7 shall terminate at such time as the number of shares
Stockholder Agreement - 7
12
of Common Stock held by Executive represents less than 10% of the shares of
Common Stock then outstanding.
Section 8. Access.
The Company shall, and shall cause its subsidiaries, officers,
directors, employees, auditors and other agents to, until such time as such
Stockholder shall cease to own any shares of Common Stock, (a) afford the
officers, employees, auditors and other agents of such Stockholder, during
normal business hours and upon reasonable notice, reasonable access at all
reasonable times to its officers, employees, auditors, legal counsel,
properties, offices, plants and other facilities and to all books and records
and (b) afford such Stockholder the opportunity to discuss the Company's
affairs, finances and accounts with the Company's officers from time to time as
each such Stockholder may reasonably request.
Section 9. Termination.
This Agreement, and the respective rights and obligations of the
Parties, shall terminate (i) upon the consummation of a Company Sale or (ii)
upon execution of a written agreement of each Party to terminate this Agreement;
provided that (i) the provisions of Sections 3, 4 and 7(f) shall terminate upon
the consummation of an IPO and (ii) the provisions of Section 6 shall terminate
upon the earlier of the second anniversary of the date hereof and the
consummation of an IPO.
Section 10. Certain Definitions.
(a) As used in this Agreement, the following terms shall have the
meanings set forth below.
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under common control with such Person
"Carlyle Management Agreement" means that certain Management Agreement
dated as of the date hereof by and among the Company and TC Group, L.L.C.
"Carlyle Stockholders" means (i) the Initial Carlyle Stockholders,
(ii) any Affiliate of any Initial Carlyle Stockholder that is issued any Shares
after the date hereof, and (iii) any subsequent transferee of the Shares held by
the Persons listed in clause (i) or clause (ii) above.
"Chief Executive Stockholders" means (i) Executive and (ii) any
Permitted Transferee of Executive.
"Company Sale" means the consummation of any transaction or series of
transactions pursuant to which one or more Persons or group of Persons (other
than any Initial Carlyle Stockholder or its Affiliates) acquires (i) capital
stock of the Company possessing the
Stockholder Agreement - 7
13
voting power sufficient to elect a majority of the members of the Board or the
board of directors of the successor to the Company (whether such transaction is
effected by merger, consolidation, recapitalization, sale or transfer of the
Company's capital stock or otherwise) or (ii) all or substantially all of the
assets of the Company and its subsidiaries.
"Convertible Securities" means any option, warrant or right, other
than the Vested Options, convertible, exercisable or exchangeable for shares of
Common Stock and any other securities that are convertible, exchangeable or
exercisable into shares of Common Stock.
"Executive Stockholders" means (i) Executive and the Other Executive
Stockholders and (ii) any Permitted Transferee of the Persons listed in clause
(i) above.
"Party" means any of the parties to this Agreement, as set forth in
the preamble.
"Person" means any individual, corporation, partnership, limited
partnership, limited liability company, syndicate, trust, association or other
entity.
"Publicly Traded Stock" means capital stock of any Person of a class
that is listed or admitted for trading or quotation on a National Securities
Exchange, within the meaning of Section 6 of the Securities Exchange Act of
1934, as amended, or the NASDAQ National Market.
"Stockholders" means the Carlyle Stockholders and the Executive
Stockholders.
"Transfer" means any sale, transfer, assignment, conveyance, pledge or
other disposition.
(b) The following terms have the meaning set forth in the Sections set
forth below:
DEFINED TERM LOCATION OF DEFINITION
------------ ----------------------
Agreement Preamble
Assumed Options Preamble
Board Recitals
Bring-Along Date Section 3
Bring-Along Notice Section 2
Bring-Along Right Section 2
Carlyle Designees Section 7
Coinvestment Preamble
Common Stock Recitals
Company Preamble
Contribution Agreement Recitals
XX XX Preamble
Director Recitals
Stockholder Agreement - 7
14
Equity Securities Recitals
Executive Preamble
Executive Designees Section 7
Initial Carlyle Stockholders Preamble
Initiating Stockholder Section 3
IPO Section 6
New Securities Section 1
New Securities Notice Section 4
Offer Notice Section 6
Offered Securities Section 6
Offering Holder Section 6
Other Executive Stockholder Preamble
Permitted Transfer Section 5
Permitted Transferee Section 5
ROFO Offer Section 6
ROFO Offer Notice Section 6
ROFO Price Section 6
ROFO Recipient Section 6
Sale Notice Section 3
Securities Act Section 1
Selling Stockholder Section 2
Shares Recitals
Tag-Along Notice Section 3
Tag-Along Right Section 3
Tag-Along Stockholder Section 3
Tagging Stockholder Section 3
Third Party Purchaser Section 2
Third Party Terms Section 2
Transferring Stockholders Section 2
Vested Options Recitals
Section 11. Miscellaneous.
(a) Legends. Each certificate representing the securities issued by
the Company and held by a Stockholder shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("ACT"), OR
THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
SAID LAWS OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF."
Stockholder Agreement - 7
15
In addition to the foregoing, each certificate representing securities issued by
the Company and held by a Stockholder shall bear the following legend:
"THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET FORTH IN A
STOCKHOLDERS AGREEMENT BETWEEN THE ISSUER AND THE INITIAL HOLDER
HEREOF DATED AS OF ____________, 2005. A COPY OF SUCH AGREEMENT SHALL
BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON
WRITTEN REQUEST."
(b) Successors, Assigns and Transferees. This Agreement shall be
binding upon and inure to the benefit of the Parties and their respective legal
representatives, heirs, legatees, successors, and assigns and any other
transferee shall also apply to any securities acquired by a Stockholder after
the date hereof; provided, however, that Executive may not assign any rights
under Section 7 hereof.
(c) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without giving effect to
the choice of law principles therein).
(d) Specific Performance; Submission to Jurisdiction. The parties
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in Court of Chancery or other courts of the State of Delaware, this
being in addition to any other remedy to which such party is entitled at law or
in equity. In addition, each of the parties hereto (i) consents to submit itself
to the personal jurisdiction of the Court of Chancery or other courts of the
State of Delaware in the event any dispute arises out of this Agreement or any
of the transactions contemplated by this Agreement, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from such court, (iii) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than the Court of Chancery or other courts of the
State of Delaware and (iv) to the fullest extent permitted by Law, consents to
service being made through the notice procedures set forth in Section 11(f).
Each party hereto hereby agrees that, to the fullest extent permitted by Law,
service of any process, summons, notice or document by U.S. registered mail to
the respective addresses set forth in Section 11(f) shall be effective service
of process for any suit or proceeding in connection with this Agreement or the
transactions contemplated hereby.
(e) Interpretation. The headings of the Sections contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the Parties and shall not affect the meaning or interpretation of this
Agreement.
Stockholder Agreement - 7
16
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given and received when delivered by overnight courier or hand delivery, when
sent by telecopy, or five days after mailing if sent by registered or certified
mail (return receipt requested) postage prepaid, to the Parties at the following
addresses (or at such other address for any Party as shall be specified by like
notices.
(i) If to any Carlyle Stockholder, addressed to such Carlyle
Stockholder, c/o The Carlyle Group, at:
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx XX
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000;
(ii) If to any Executive Stockholder, to the address set forth on such
Executive Stockholder's signature page hereto with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy No.: (000) 000-0000
(iii) If to the Company at:
00 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X.X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, X.X.
Tenth Floor
Stockholder Agreement - 7
17
Washington, D.C. 20004
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(g) Recapitalization, Exchange, Etc. Affecting the Company's Capital
Stock. The provisions of this Agreement shall apply, to the full extent set
forth herein, with respect to any and all shares of Common Stock and all of the
shares of capital stock of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets, or otherwise) that may be
issued in respect of, in exchange for, or in substitution of such Common Stock
and shall be appropriately adjusted for any stock dividends, splits, reverse
splits, combinations, recapitalizations, and the like occurring after the date
hereof.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to constitute one and the same agreement.
(i) Attorney's Fees. In any action or proceeding brought to enforce
any provision of this Agreement, the successful Party shall be entitled to
recover reasonable attorney's fees in addition to any other available remedy.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal, or unenforceable in any respect for any reason, the validity,
legality, and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby.
(k) Amendment. Any provision of this Agreement may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only by the written consent of (i)
as to the Company, only by the Company, (ii) as to the Carlyle Stockholders, by
Carlyle Stockholders holding more than a majority in interest of the equity
securities of the Company held by the Carlyle Stockholders and (iii) as to the
Executive Stockholders, by Executive Stockholders holding more than a majority
in interest of the shares of Common Stock issued or issuable to the Executive
Stockholders. Any amendment or waiver effected in accordance with this Section
11(k) shall be binding upon the Company, the Carlyle Stockholders and their
successors and assigns and the Executive Stockholders and their successors and
assigns. This Agreement may be amended at any time by the Company to add an
Other Executive Stockholder as a party hereto by the Company and such Other
Executive Stockholder executing a supplemental signature page hereto in the form
attached as Exhibit A
(l) Tax Withholding. The Company shall be entitled to require payment
in cash or deduction from other compensation payable to any Stockholder of any
sums required by federal, state, or local tax law to be withheld with respect to
the issuance, vesting, exercise, repurchase, or cancellation of any Share or any
option to purchase Equity Securities.
Stockholder Agreement - 7
18
(m) Entire Agreement. This Agreement and the Contribution Agreement
(including any and all exhibits, schedules and other instruments contemplated
thereby) constitute the entire agreement of the Parties with respect to the
subject matter hereof.
[Remainder of Page Intentionally Left Blank.]
Stockholder Agreement - 7
19
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
date first written above.
SUNSHINE ACQUISITION CORPORATION,
By: /s/ Xxxxxxxx X. Xxxxx, XX
------------------------------------
Name: Xxxxxxxx X. Xxxxx, XX
Title: President
CARLYLE PARTNERS IV, L.P.,
A DELAWARE LIMITED PARTNERSHIP
BY:
TC GROUP IV, L.P.,
ITS GENERAL PARTNER
BY:
TC GROUP IV, L.L.C.,
ITS GENERAL PARTNER
BY:
TC GROUP, L.L.C.,
ITS MANAGING MEMBER
BY:
TCG HOLDINGS, L.L.C.,
ITS MANAGING MEMBER
BY: /s/ XXXXXXXX X. XXXXX, XX
------------------------------------
NAME: XXXXXXXX X. XXXXX, XX
TITLE: MANAGING DIRECTOR
Stockholder Agreement - 7
XX XX COINVESTMENT, L.P.,
A DELAWARE LIMITED PARTNERSHIP
BY:
TC GROUP IV, L.P.,
ITS GENERAL PARTNER
BY:
TC GROUP III, L.L.C.,
ITS GENERAL PARTNER
BY:
TC GROUP, L.L.C.,
ITS MANAGING MEMBER
BY:
TCG HOLDINGS, L.L.C.,
ITS MANAGING MEMBER
BY: /s/ XXXXXXXX X. XXXXX XX
------------------------------------
NAME: XXXXXXXX X. XXXXX, XX
TITLE: MANAGING DIRECTOR
Stockholder Agreement - 7
21
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
Address: 00 Xxxx Xxxxx Xx.
Xxxx, XX 00000
Facsimile: (000) 000-0000
Stockholder Agreement - 7
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EXHIBIT A
SIGNATURE PAGE
TO
STOCKHOLDERS AGREEMENT OF
SUNSHINE ACQUISITION CORPORATION
By execution of this signature page, _____________ hereby agrees to become a
party to, and to be bound by the obligations of, and receive the benefits of,
that certain Stockholders Agreement of Sunshine Acquisition Corporation, dated
as of [ ], 2005, by and among Sunshine Acquisition Corporation, a Delaware
corporation, Carlyle Partners IV, L.P., a Delaware limited partnership, XX XX
Coinvestment, L.P., a Delaware limited partnership and Xxxxxxx X. Xxxxx, an
individual, as amended from time to time thereafter.
----------------------------------------
[Name]
Notice Address:
----------------------------------------
----------------------------------------
Accepted:
Sunshine Acquisition Corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Stockholder Agreement - 7
23
