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Exhibit 10.14
EXECUTION COPY
STOCKHOLDERS AGREEMENT
AGREEMENT (this "AGREEMENT"), dated as of March 16, 2001, by and
among TBM Holdings Inc., a Delaware corporation (the "COMPANY"), X.X. Xxxxxxx
III, L.P., a Delaware limited partnership ("WHITNEY III"), X. X. Xxxxxxx XX,
L.P., a Delaware limited partnership ("XXXXXXX XX"), Whitney Strategic Partners
III, L.P., a Delaware limited partnership ("WHITNEY STRATEGIC" and together with
Whitney III and Xxxxxxx XX, collectively, the "WHITNEY FUNDS"), LEG Partners,
L.P., a Delaware limited partnership ("LEG I"), LEG Partners II, L.P., a
Delaware limited partnership ("LEG II"), LEG Partners SBIC, L.P., a Delaware
limited partnership ("LEG SBIC"), LEG Partners III SBIC, L.P., a Delaware
limited partnership ("LEG III"), LEG Partners Debenture SBIC, L.P., a Delaware
limited partnership ("LEG DEBENTURES" and together with LEG I, LEG II, LEG SBIC
and LEG III, "XXXXX"), Colt Capital LLC, a Connecticut limited liability company
("COLT") and TBM Capital II, LLC, a North Carolina limited liability company
("TBM CAPITAL" and together with any parties who may from time to time join this
Agreement, the "OTHER STOCKHOLDERS"). The Whitney Funds, Xxxxx, Colt and the
Other Stockholders are sometimes hereinafter collectively referred to as the
"STOCKHOLDERS" and each individually as a "STOCKHOLDER."
W I T N E S S E T H :
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WHEREAS, pursuant to the terms of the Series B Preferred Stock
Purchase Agreement (the "PURCHASE AGREEMENT"), dated as of the date hereof, by
and among the Company, the Whitney Funds, LEG III and LEG Debentures, (A) the
Whitney Funds have purchased from the Company 472,254 shares of 10% Series B
Cumulative Convertible Preferred Stock, $.001 par value per share, of the
Company (the "SERIES B PREFERRED STOCK") and (B) LEG III and LEG Debentures have
collectively purchased from the Company 472,254 shares of Series B Preferred
Stock; and
WHEREAS, the Stockholders believe that it is in the best interest of
the Company and the Stockholders that provision be made for the continuity and
stability of the business and policies of the Company, and, accordingly, desire
to make certain arrangements among themselves with respect to the election of
directors of the Company and with respect to certain other matters.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings, and all capitalized terms used herein which are
not otherwise defined shall have the meaning assigned thereto in the Purchase
Agreement:
(a) "AFFILIATE" shall mean (i) in the case of an entity, any Person
who or which, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, any specified
Person or (ii) in the case of an individual, such
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individual's spouse, children, grandchildren or parents or a trust primarily for
the benefit of any of the foregoing.
(b) "ARTICLES OF INCORPORATION" shall mean the Articles of
Incorporation of the Company, as amended, as in effect as of the date hereof.
(c) "BONA FIDE PURCHASER" shall mean any Person (other than a
Selling Stockholder's Affiliates) who or which has delivered a good faith
written offer to purchase all or any portion of such Stockholder's Shares.
(d) "COMMON STOCK" shall mean, collectively, the shares of common
stock, $.001 par value per share, of the Company and any class or series of
common stock of the Company authorized after the date hereof, or any other class
or series of stock resulting from successive changes or reclassifications of any
class or series of common stock of the Company.
(e) "CLOSING PRICE" shall mean for any day, with respect to each
Share in question, (a) the last reported sale price regular way or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices regular way, in either case as reported on the principal national
securities exchange on which such Shares are listed or admitted for trading or
(b) if the Shares are not listed or admitted for trading on any national
securities exchange, the last reported sale price or, in case no such sale takes
place on such day, the average of the highest reported bid and the lowest
reported asked quotation for the Shares, in either case as reported on the
NASDAQ or a similar service if NASDAQ is no longer reporting such information.
(f) "CONFIDENTIAL INFORMATION" shall mean information of a
confidential nature created, discovered, prepared or otherwise developed by the
Company or any of its Subsidiaries, which is generally unavailable to the public
and has a material economic value in the business in which the Company or any of
its Subsidiaries is engaged. Such Confidential Information includes, but is not
limited to, customer and supplier lists, pricing, marketing and sales
strategies, employee and consultant rosters and other business or financial
information developed by or disclosed to the Company or any of its Subsidiaries,
which has actual or potential economic value to the Company or any of its
Subsidiaries.
(g) "CURRENT MARKET PRICE" shall mean, with respect to a Share on
any date, (i) the average of the daily Closing Prices per Share for the 10
consecutive trading days commencing 15 trading days before such date, or (ii) if
on any such date the Shares are not listed or admitted for trading on any
national securities exchange or quoted by NASDAQ or a similar service, then as
determined in good faith by the Board of Directors of the Company.
(h) "DISPOSE" or "DISPOSITION" (and any derivatives thereof) shall
mean (i) a voluntary or involuntary sale, assignment, mortgage, grant, pledge,
hypothecation, exchange, transfer, conveyance or other disposition of a
Stockholder's Shares, and (ii) any agreement, contract or commitment to do any
of the foregoing.
(i) "ENCUMBRANCE" or "ENCUMBER" shall mean or refer to any lien,
claim, charge, pledge, mortgage, encumbrance, security interest, preferential
arrangement, restriction on
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voting or alienation of any kind, adverse interest, or the interest of a third
party under any conditional sale agreement, capital lease or other title
retention agreement.
(j) "EQUITY EQUIVALENTS" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of the
Company and any rights to acquire the foregoing, including, without limitation,
any rights to acquire securities exercisable for, convertible into or
exchangeable for the foregoing.
(k) "INSTITUTIONAL INVESTOR" shall mean the Whitney Funds, Xxxxx and
Colt and their respective successors and assigns.
(l) "PERMITTED TRANSFEREES" shall mean in the case of (i) Whitney
Funds, the Affiliates, partners, managing directors and principals and retired
partners, managing directors and principals of each of Whitney Funds or Whitney,
the estates and family members of any such Persons and of their spouses, and any
trusts for the benefit of any of the foregoing Persons, (ii) Xxxxx, the
Affiliates, partners, managing directors and principals, partners and retired
partners, managing directors and principals of Xxxxx, the estates and family
members of any such Persons and of their spouses, and any trusts for the benefit
of any of the foregoing Persons, (iii) in the case of Colt, the Affiliates,
members and managers and retired members and managers, the estates and family
members of any such Person and of their sponsor and any trusts for the benefit
of any of the foregoing Persons, (iv) in the case of the Other Stockholders who
are not trusts, the estates and family members of such Stockholder, and any
trusts for the benefit of the foregoing Persons, and (v) in the case of the
Other Stockholders who are trusts, the estates and family members of such trusts
beneficiaries, and any other trusts for the benefit of such beneficiaries;
provided, however, that in each case such Person shall agree in writing with the
parties hereto to be bound by and to comply with all applicable provisions of
this Agreement.
(m) "PERSON" shall mean any individual, partnership, corporation,
limited liability company, joint venture, trust, firm, association,
unincorporated organization or other entity.
(n) "PREFERRED STOCKHOLDERS" shall mean the Whitney Funds, Xxxxx and
their respective successors and assigns.
(o) "QUALIFIED PUBLIC OFFERING" shall mean the underwritten public
offering by the Company or any of its Subsidiaries of its Common Stock pursuant
to a registration statement (other than a registration statement relating solely
to an employee benefit plan or transaction covered by Rule 145 of the Securities
Act) that has been filed under the Securities Act and declared effective by the
Commission in which the Company or any of its Subsidiaries receives at least
$20,000,000 of net cash proceeds, with a per share price equal to 3 multiplied
by the per share Liquidation Preference, as defined in the Certificate of
Designation (subject to appropriate adjustments for any dividends, subdivisions,
combinations or reclassifications of the Common Stock); provided, however, that
(x) for this purpose any offering under Rule 144A under the Securities Act or
any similar rule or regulation promulgated under the Securities Act shall not be
deemed to be a Qualified Public Offering, and (y) for purposes of Section 2A
hereof,
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Qualified Public Offering shall mean any underwritten public offering, without
consideration to the amount of net cash proceeds which are received by the
Company and its Subsidiaries.
(p) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(q) "SHARES" shall mean, with respect to any Stockholder, (i) all
shares of capital stock of the Company, including, without limitation, Common
Stock and Series B Preferred Stock, held at any time by such Stockholder, (ii)
any option, warrant, or other right held at any time by any Stockholder,
exercisable for shares of capital stock of the Company, and (iii) any security,
including, without limitation, Series B Preferred Stock, held at any time by
such Stockholder, convertible or exchangeable for capital stock of the Company.
(r) "STOCKHOLDER" shall mean each Person so identified in the
preamble hereto and shall include any other Person who agrees in writing with
the parties hereto to be bound by and to comply with all applicable provisions
of this Agreement and all Permitted Transferees thereof.
(s) "SUBSIDIARIES" shall mean, with respect to any Person, a
corporation or other entity of which 50% or more of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly, by
such Person. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company or to Subsidiaries thereof.
(t) "WHITNEY" shall mean Whitney & Co.
SECTION 2. PREEMPTIVE RIGHTS.
(a) If at any time the Company wishes to issue any Equity
Equivalents to any Person or Persons, the Company shall promptly deliver a
notice of its intention to sell (the "COMPANY'S NOTICE OF INTENTION TO SELL") to
each Institutional Investor (collectively, the "ELIGIBLE STOCKHOLDERS") setting
forth a description of the Equity Equivalents to be sold, the proposed purchase
price thereof and terms of sale. Upon receipt of the Company's Notice of
Intention to Sell, each Eligible Stockholder shall have the right to elect to
purchase, at the price and on the terms stated in the Company's Notice of
Intention to Sell, a number of the Equity Equivalents equal to the product of
(i) a fraction, the numerator of which is such Eligible Stockholder's aggregate
ownership of Equity Equivalents (calculated on a fully-diluted basis) and the
denominator of which is the number of such Equity Equivalents held by all
Eligible Stockholders (calculated on a fully-diluted basis), multiplied by (ii)
the number of Equity Equivalents to be issued. Such election is to be made by
the Eligible Stockholders by written notice to the Company within 15 days after
receipt by the Eligible Stockholders of the Company's Notice of Intention to
Sell (the "ACCEPTANCE PERIOD FOR EQUITY EQUIVALENTS"). Each Eligible Stockholder
shall also have the option, exercisable by so specifying in such written notice,
to purchase on a pro rata basis similar to that described above, any remaining
Equity Equivalents not purchased by other Eligible Stockholders, in which case
the Eligible
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Stockholders exercising such further option shall be deemed to have elected to
purchase such remaining Equity Equivalents on such pro rata basis, up to the
aggregate number of Equity Equivalents which such Eligible Stockholder shall
have specified until either (A) no Eligible Stockholder shall have elected to
purchase any further amount of the Equity Equivalents which are the subject of
the Company's Notice of Intention to Sell or (B) all the Equity Equivalents
which are the subject of the Company's Notice of Intention to Sell shall have
been subscribed for by the Eligible Stockholder(s). The Company shall promptly
notify each electing Eligible Stockholder in writing of each notice of election
received from other Eligible Stockholders pursuant to this paragraph 2 (a).
(b) If effective acceptances shall not be received pursuant to
paragraph 2(a) above in respect of all the Equity Equivalents which are the
subject of the Company's Notice of Intention to Sell, then the Company may, at
its election, during a period of 120 days following the expiration of the
Acceptance Period for Equity Equivalents, sell and issue the remaining Equity
Equivalents to another Person at a price and upon terms not more favorable to
such Person than those stated in the Company's Notice of Intention to Sell. In
the event the Company has not sold the Equity Equivalents, or entered into an
agreement to sell the Equity Equivalents, within such 120 day period, the
Company shall not thereafter issue or sell any Equity Equivalents without first
offering such securities to each Eligible Stockholder in the manner provided in
Section 2(a) hereof.
(c) If an Eligible Stockholder gives the Company notice, pursuant to
the provisions of this Section 2, that such Eligible Stockholder desires to
purchase any of the Equity Equivalents, payment therefor shall be by check or
wire transfer, against delivery of the securities at the executive offices of
the Company within 15 Business Days after giving the Company such notice, or, if
later, the closing date for the sale of such Equity Equivalents. In the event
that any such proposed issuance is for a consideration other than cash, such
Eligible Stockholder will be entitled to pay cash for each share or other unit,
in lieu of such other consideration, in the amount determined in good faith by
the Board of Directors of the Company to constitute the fair value of such
consideration other than cash to be paid per share or other unit.
(d) The preemptive rights contained in this Section 2 shall not
apply to (i) Common Stock issued (A) as a stock dividend to holders of Common
Stock or upon any subdivision or combination of shares of Common Stock, (B)
pursuant to a Qualified Public Offering, (C) upon the conversion of any equity
security or debt security of the Company issued on or prior to the date hereof,
or (D) the exercise of any option, warrant or other right to subscribe for,
purchase or otherwise acquire either Common Stock or any equity security or debt
security convertible into Common Stock, issued prior to the date hereof, and
(ii) (A) the issuance by the Company of up to 375,000 shares of Common Stock
reserved or to be reserved for issuance upon the exercise of stock options
("OPTIONS"), granted or to be granted exclusively to employees, officers,
directors or consultants of the Company or its Subsidiaries and/or Affiliates
pursuant to the Company's employee stock option plan(s) now in existence or,
with the consent of the Preferred Stockholders, to be established in the future
or (B) the grant of the stock options referred to in clause (ii)(A) of this
paragraph (d). Failure by an Eligible Stockholder to exercise
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his, her or its option to purchase with respect to one offering, sale and
issuance of Equity Equivalents shall not affect his, her or its option to
purchase Equity Equivalents in any subsequent offering, sale and purchase.
(e) Notwithstanding any provision in this Agreement to the contrary,
unless the Preferred Stockholders otherwise agree, the Company shall not issue
or sell any shares of capital stock or securities or rights exercisable for,
convertible into or exchangeable for capital stock of the Company (other than
(i) pursuant to a Qualified Public Offering, (ii) the Options and any shares of
Common Stock issued upon the exercise of the Options to any Person who at the
time of such issuance or sale is not a party to this Agreement, (iii) any other
shares of Common Stock issued pursuant to paragraph 2(d)) unless such Person
agrees in writing to be bound by all of the provisions of this Agreement as if
such Person were an Other Stockholder.
SECTION 2A. RIGHT TO SUBSCRIBE IN CONNECTION WITH A QUALIFIED PUBLIC
OFFERING.
(a) Subject to the terms hereof, in the event of a Qualified Public
Offering, the Company shall offer to sell to each of the Institutional Investors
an aggregate of five percent (5%) of the firm shares of Equity Equivalents being
offered by the Company in the Qualified Public Offering (the "DIRECTED SHARE
PROGRAM"). The Institutional Investors shall be entitled to purchase their
Ratable Portion (as defined below) of the Equity Equivalents in the Directed
Share Program on the same terms and conditions, and at the same offering terms
as are offered to the public in connection with the Qualified Public Offering.
"RATABLE PORTION" shall mean, as to each Institutional Investor, an amount equal
to the product of (i) the amount of Equity Equivalents in the Directed Share
Program, multiplied by (ii) a fraction, the numerator of which is equal to the
aggregate amount of shares of Common Stock held by the Institutional Investor in
question (assuming full conversion and exercise of all convertible or
exercisable Equity Equivalents (which are convertible into or exercisable for
shares of Common Stock) held by such Institutional Investor), and the
denominator of which is equal to the aggregate amount of shares of Common Stock
held by all of the Institutional Investors (assuming full conversion and
exercise of all convertible or exercisable Equity Equivalents (which are
convertible into or exercisable for shares of Common Stock) held by all
Institutional Investors).
(b) The Company shall give written notice of the proposed issuance
of such Equity Equivalents in the Qualified Public Offering to each
Institutional Investor at least twenty (20) business days prior to such
Qualified Public Offering. Such notice shall contain the terms and conditions of
the issuance of such Equity Equivalents. Each Institutional Investor may elect
to exercise all or any lesser portion of its rights under this Section 2A to
purchase such Equity Equivalents by providing the Company with written notice
within ten (10) business days from its receipt of the Company's notice. Upon the
expiration of such ten (10) business day period, the Company shall, in writing,
promptly inform each Institutional Investor that elects to purchase its entire
Ratable Portion (each, a "FULLY ELECTING STOCKHOLDER") of any other
Institutional Investor's failure to do likewise. Each Fully Electing Stockholder
shall have a right of over allotment such that, if any other Institutional
Investor fails to purchase its entire Ratable Portion, all Fully Electing
Stockholders may, before the date which is two (2) business days prior to the
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Qualified Public Offering, exercise an additional right to purchase, on a pro
rata basis based upon their relative Ratable Portions, the Equity Equivalents
not previously purchased by those Institutional Investors who did not elect to
purchase their entire Ratable Portions. Each Institutional Investor shall be
entitled to apportion the allocation of Equity Equivalents it is entitled to
purchase pursuant to this Section 2A among its partners, managing directors and
affiliates, provided that such Institutional Investor notifies the Company of
such allocation. The provisions of this Section 2A may be amended, modified or
eliminated in order to comply with applicable laws or if the lead underwriter
deems such amendment, modification or elimination necessary in its reasonable
judgment in order to ensure the success of the Qualified Public Offering. If the
lead underwriter so deems, it shall provide the Company and the Institutional
Investors with a written explanation as to why in its reasonable judgment such
an amendment, modification or elimination is necessary, and such written
explanation must be received by the Company and the Institutional Investors at
least three (3) business days before the Qualified Public Offering.
SECTION 3. TRANSFER OF SHARES. No Stockholder (other than a Preferred
Stockholder) shall effect a Disposition of any of his, her or its Shares, except
to a Permitted Transferee or as provided in this Agreement. Any purported
Disposition in violation of this Agreement shall be null and void ab initio, and
the Company shall not recognize any such Disposition or accord to any such
purported transferee any rights as a Stockholder.
SECTION 4. RIGHT OF FIRST REFUSAL; RIGHT OF CO-SALE.
(a) If any Stockholder shall desire at any time to effect the
Disposition of any of his, her or its Shares (the "Offered Shares") and shall
receive a purchase offer therefor or the terms of a potential purchase offer
therefor from a Bona Fide Purchaser (such offers being hereinafter referred to
as a "Purchase Offer"), then such selling Stockholder ("SELLING STOCKHOLDER")
shall promptly notify the Company and each Institutional Investor of the terms
and conditions of such Purchase Offer; provided, however, that this Section 4
shall not apply to any Disposition by a Stockholder to such Stockholder's
Permitted Transferees or by any Preferred Stockholder to any Person.
(b) Upon receipt of such notice of the Purchase Offer, each
Institutional Investor (other than Colt, if Colt is the Selling Stockholder)
shall have the right to elect to purchase, at the price and on the terms stated
in such notice, a number of the Offered Shares subject to the Purchase Offer
equal to the product obtained by multiplying (i) the aggregate number of Offered
Shares covered by the Purchase Offer by (ii) a fraction the numerator of which
is the number of Shares (calculated on a fully diluted basis) at the time owned
by such Institutional Investor and the denominator of which is the aggregate
number of Shares (calculated on a fully diluted basis) owned by all
Institutional Investors. Such election is to be made by written notice ("NOTICE
OF ELECTION") to the Selling Stockholder, to each other Institutional Investor
and to the Company within 15 days after receipt by such Institutional Investor
of the notice of a Purchase Offer (the "ACCEPTANCE PERIOD"). Each Institutional
Investor who elects to exercise his, her or its rights under this Section 4
("ELECTING STOCKHOLDER") shall also have the option, exercisable by so
specifying in the Notice of Election, to purchase on a pro
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rata basis similar to that described above any remaining Offered Shares covered
by the Purchase Offer not purchased by other Institutional Investors, in which
case the Institutional Investors exercising such further option shall be deemed
to have elected to purchase such remaining Offered Shares on such pro rata
basis, up to the aggregate number of Shares which such Electing Stockholder
shall have specified.
(c) If effective acceptances shall not have been received pursuant
to paragraph 4(b) above in respect of all of the Offered Shares subject to the
Purchase Offer, then the Selling Stockholder may, at his, her or its election,
either (i) sell to the Electing Stockholders pursuant to their elections and
sell any remaining Offered Shares subject to the Purchase Offer to the Bona Fide
Purchaser, or (ii) rescind the notice of the Purchase Offer, which rescission
shall be effected by notice in writing delivered to each Institutional Investor
that shall have elected to purchase and to the Company within 10 days after
expiration of the Acceptance Period, and keep all, but not less than all, of the
Offered Shares subject to the Purchase Offer. In the event that the Selling
Stockholder elects to sell any Offered Shares pursuant to the Purchase Offer,
pursuant to clause (i) of this Section 4(c), the Bona Fide Purchaser and the
Electing Stockholders must purchase such Offered Shares no more than 30 days
after the end of the Acceptance Period strictly in accordance with the terms and
conditions of the Purchase Offer; provided, however, that, in the event that the
Selling Stockholder shall so elect to sell Offered Shares to the Bona Fide
Purchaser, the prospective Bona Fide Purchaser, as a condition precedent to the
purchase of the Offered Shares, or any part thereof, shall subscribe to this
Agreement and agree to be bound by all of the terms and conditions hereof. In
the event that the Selling Stockholder shall so elect to sell Offered Shares
subject to the Purchase Offer to the Bona Fide Purchaser and Electing
Stockholders pursuant to clause (i) of this Section 4(c), the Selling
Stockholder shall so notify in writing each Institutional Investor who is not an
Electing Stockholder (the "OUTSIDE SALE NOTICE") and no such sale shall be made
unless and until each such Institutional Investor (the "ELIGIBLE CO-SALE
STOCKHOLDER") shall have been afforded the right (the "CO-SALE RIGHT"),
exercisable upon written notice to the Company and the Selling Stockholder
within 30 days after receipt of the Outside Sale Notice, to participate in the
sale of Shares at the same time and on the same terms and conditions under which
the Selling Stockholder will sell the Selling Stockholder's Offered Shares. Each
such Eligible Co-Sale Stockholder may sell all or any part of that number of
Shares held by such Eligible Co-Sale Stockholder equal to the product obtained
by multiplying (x) the aggregate number of Offered Shares covered by the
Purchase Offer by (y) a fraction the numerator of which is the number of Shares
(calculated on a fully diluted basis) at the time owned by such Eligible Co-Sale
Stockholder and the denominator of which is the aggregate number of Shares
(calculated on a fully diluted basis) owned by all Eligible Co-Sale Stockholders
exercising their Co-Sale Right plus the number of Shares (calculated on a fully
diluted basis) then owned by the Selling Stockholder. To the extent that
Eligible Co-Sale Stockholders participate in the subject sale of Offered Shares
hereunder, the Selling Stockholder shall be required to reduce the number of its
Shares included in the Offered Shares.
(d) If the Company so requests, each Eligible Co-Sale Stockholder
receiving an Outside Sale Notice in accordance with Section 4(c) and exercising
his, her or its Co-Sale Right shall deliver to the Company, as agent for such
Eligible Co-Sale Stockholder, for transfer to the Bona Fide Purchaser one or
more certificates, properly endorsed for transfer, which
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represent the number of Shares of which such Eligible Co-Sale Stockholder elects
to Dispose pursuant to this Section 4. No Disposition of such Shares shall be
made on terms and conditions, including the form of consideration, different
from those contained in the Purchase Offer unless the Selling Stockholder
re-offers the Offered Shares subject to the Purchase Offer to the Stockholders
in accordance with this Section 4.
(e) The stock certificate or certificates delivered by the Eligible
Co-Sale Stockholders to the Company pursuant to Section 4(d) shall be
transferred by the Company to the Bona Fide Purchaser in consummation of the
Disposition of the Shares pursuant to the terms and conditions specified in
Section 4(a) and the Company shall promptly thereafter remit to each Eligible
Co-Sale Stockholder that portion of the Disposition proceeds to which such
Eligible Co-Sale Stockholder is entitled by reason of his, her or its
participation in such Disposition.
(f) In the event that a Selling Stockholder shall not have Disposed
of all of his, her or its Offered Shares subject to a Purchase Offer within 120
days after the date of the notice given pursuant to Section 4(a), such Selling
Stockholder shall not thereafter Dispose of any Shares pursuant to the Purchase
Offer or otherwise without first reoffering such Shares to each Institutional
Investor in the manner set forth in Section 4 hereof.
(g) Notwithstanding anything contained in this Section 4 or any
notice given hereunder, the provisions of this Section 4 shall be suspended
immediately upon the occurrence of any event within the scope of Section 5.
SECTION 5. RIGHT OF BRING-ALONG.
(a) If the Preferred Stockholders (the "SELLING PREFERRED
STOCKHOLDERS") propose to Dispose of all (but not less than all) of the Shares
owned by them to a Bona Fide Purchaser, other than any transfers by such
Preferred Stockholders to such Preferred Stockholders' respective Permitted
Transferees, then, notwithstanding anything in this Agreement to the contrary,
the Selling Preferred Stockholders may require Colt and the Other Stockholders
(the "NON-SELLING HOLDERS") to Dispose of their Shares (the "BRING-ALONG RIGHT")
to such Bona Fide Purchaser for the same consideration such Non-Selling Holders
would have received if the Company had been sold and liquidated in accordance
with the provisions of the Articles of Incorporation and otherwise on the same
terms and conditions upon which the Selling Preferred Stockholders effect the
Disposition of their Shares.
(b) In the event that the Selling Preferred Stockholders desire to
exercise their rights pursuant to Section 5(a), the Selling Preferred
Stockholders shall deliver to the Company and the Non-Selling Holders written
notice ("SALE NOTICE") setting forth the consideration per share to be paid by
such Bona Fide Purchaser and the other terms and conditions of such Disposition.
Within fifteen (15) days following the date of such notice, each of the
Non-Selling Holders shall deliver to the Selling Preferred Stockholders (i) a
stock certificate or certificates evidencing such Non-Selling Holder's Shares,
together with an appropriate assignment separate from certificate duly executed
in a proper form to effect
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the Disposition of such Shares from the Non-Selling Holders to the Bona Fide
Purchaser on the books and records of the Company, and (ii) a limited
power-of-attorney authorizing one of the Selling Preferred Stockholders to
effect the Disposition of such Shares pursuant to the terms of such Bona Fide
Purchaser's offer as such terms may be modified by the Selling Preferred
Stockholders, provided, that all of the Non-Selling Holder's Shares are disposed
of for the same consideration per share (subject to appropriate adjustment to
reflect any differences in the rights and preferences of Shares of different
classes or series) and otherwise on the same terms and conditions upon which the
Selling Preferred Stockholders effect the Disposition of their Shares. In the
event that any Non-Selling Holder shall fail to deliver such stock
certificate(s), assignment separate from certificate and limited
power-of-attorney to the Selling Preferred Stockholders, the Company shall cause
a notation to be made on its books and records to reflect that the Shares of
such Non-Selling Holder are bound by the provisions of this Section 5 and that
the Disposition of such Shares may be effected without such Non-Selling Holder's
consent or surrender of its Shares.
In addition, in the event the Selling Preferred Stockholders
exercise their rights under Section 5(a), the Non-Selling Holders shall be
required to make to a Bona Fide Purchaser such unqualified representations and
warranties with respect to their Shares as are set forth in Section 5(e) hereof
and representations and warranties with respect to all other matters as are
reasonably requested by the Bona Fide Purchaser, provided that the Non-Selling
Holders will only be required to provide representations and warranties on the
same basis and subject to the same qualifications as the Selling Preferred
Stockholders and will only be required to indemnify the Bona Fide Purchaser
against breaches of such representations and warranties up to an aggregate
dollar amount not to exceed their respective consideration received other than
with respect to representations and warranties regarding ownership of stock and
authority to consummate the transaction in question.
(c) Promptly (but in no event later than the day of receipt) after
the consummation of the Disposition of Shares pursuant to this Section 5, the
Selling Preferred Stockholders shall (i) deliver notice thereof to the
Non-Selling Holders, (ii) remit to the Non-Selling Holders the total sales price
of their respective Shares Disposed of pursuant hereto, and (iii) furnish such
other evidence of the completion and time of completion of such Disposition and
the terms thereof as may be reasonably requested in writing by the Non-Selling
Holders.
(d) If, within ninety (90) days after the Selling Preferred
Stockholders' delivery of the Sale Notice required pursuant to Section 5(b), the
Selling Preferred Stockholders have not completed the Disposition of their
Shares and that of the Non-Selling Holders in accordance herewith, the Selling
Preferred Stockholders shall return to the Non-Selling Holders (i) the stock
certificates and assignments of certificates with respect to the Non-Selling
Holders' Shares which the Non-Selling Holder delivered pursuant to this Section
5 and (ii) the related limited power-of-attorney delivered pursuant to this
Section 5. Upon the Non-Selling Holder's receipt of such materials, all the
restrictions on Disposition contained in this Agreement with respect to the
Shares owned by the Stockholders shall again be in effect.
(e) All sales of Shares to be made pursuant to this Section 5 shall
be subject to the following terms:
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(i) the Disposing Stockholder shall deliver to the Bona Fide
Purchaser the certificates evidencing the Shares being sold, free and clear of
Encumbrances, together with duly executed stock transfer powers in favor of the
Bona Fide Purchaser or its nominees and such other documents, including evidence
of ownership and authority, as the Bona Fide Purchaser may reasonably request;
(ii) except as otherwise specifically set forth herein, the
Disposing Stockholder shall not be required to make any representations or
warranties to any Person in connection with such sale, except as to (A) good
title to the Shares being sold, (B) the absence of Encumbrances with respect to
the Shares being sold, (C) its valid existence and good standing (if
applicable), (D) the authority for, and validity and binding effect of (as
against such Disposing Stockholder), any agreement entered into by such
Disposing Stockholder in connection with such sale, (E) the fact that Disposing
Stockholder's sale will not conflict with or result in a breach of or constitute
a default under, or violation of, its governing documents or any indenture,
lease, loan or other agreement or instrument by which it is bound or affected,
(F) all required material consents to Disposing Stockholder's sale and material
governmental approvals having been obtained (excluding any securities laws), and
(G) the fact that no broker's commission is payable by the Disposing Stockholder
as a result of Disposing Stockholder's conduct in connection with the sale; and
(iii) the Disposing Stockholder shall not be required to
provide any indemnities in connection with such sale except for breach of the
representations and warranties specifically required by the terms of this
Agreement.
SECTION 6. TAG-ALONG RIGHTS.
(a) In the event that a Preferred Stockholder (a "TAG SELLER")
proposes to Dispose (other than in a public sale) of any Shares so that
immediately following such Disposition, such Tag Seller would own less than 50%
of the Shares (the "TAG SHARES") held by such Tag Seller immediately following
the consummation of the transactions contemplated in the Purchase Agreement, in
a transaction or series of related transactions pursuant to terms of a purchase
offer therefor from a Bona Fide Purchaser (the "TAG OFFER"), other than
transfers by such Preferred Stockholder to such Preferred Stockholder's
Permitted Transferees (a "TAG SALE"), then, the Tag Seller shall so notify in
writing each of Colt and the Other Stockholders (the "TAG NOTICE") and no such
sale shall be made unless and until each such Other Stockholder or Colt, as the
case may be, (the "TAG ALONG STOCKHOLDER") shall have been afforded the right
(the "TAG ALONG RIGHT"), exercisable upon written notice to the Company and the
Tag Seller within 30 days after receipt of the Tag Notice, to participate in the
sale of Shares at the same time and on the same terms and conditions under which
the Tag Seller will sell the Tag Shares. Each such Tag Along Stockholder may
sell all or any part of that number of Shares held by such Tag Along Stockholder
equal to the product obtained by multiplying (x) the aggregate number of Tag
Shares covered by the Tag Offer by (y) a fraction the numerator of which is the
number of
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Shares (calculated on a fully diluted basis) at the time owned by such Tag Along
Stockholder and the denominator of which is the aggregate number of Shares
(calculated on a fully diluted basis) owned by all Tag Along Stockholders
exercising their Tag Along Right plus the number of Shares (calculated on a
fully diluted basis) then owned by the Tag Seller. To the extent that Tag Along
Stockholders participate in the subject sale of Offered Shares hereunder, the
Tag Seller shall be required to reduce the number of its Shares included in the
Tag Shares. Notwithstanding anything to the contrary contained herein, Colt
shall be entitled to exercise its Tag-Along Right on any Disposition of Shares
by a Preferred Stockholder, other than transfer by a Preferred Stockholder to
such Preferred Stockholder's Permitted Transferees.
(b) If the Company so requests, each Tag Along Stockholder receiving
a Tag Notice in accordance with Section 6(a) and exercising his, her or its Tag
Along Right shall deliver to the Company, as agent for such Tag Along
Stockholder, for transfer to the Bona Fide Purchaser one or more certificates,
properly endorsed for transfer, which represent the number of Shares of which
such Tag Along Stockholder elects to Dispose pursuant to this Section 6 No
Disposition of such Shares shall be made on terms and conditions, including the
form of consideration, different from those contained in the Tag Offer unless
the Tag Seller provides notice to the Tag Along Stockholders in accordance with
this Section 6; provided that the proceeds of any such Tag Sale shall be
distributed as if such proceeds were liquidated in accordance with the
provisions of the Articles of Incorporation.
(C) The stock certificate or certificates delivered by the Tag Along
Stockholders to the Company pursuant to Section 6(b) shall be transferred by the
Company to the Bona Fide Purchaser in consummation of the Disposition of the
Shares pursuant to the terms and conditions specified in Section 6(a) and the
Company shall promptly thereafter remit to each Tag Along Stockholder that
portion of the Disposition proceeds to which such Tag Along Stockholder is
entitled by reason of his, her or its participation in such Disposition.
SECTION 7. BOARD OF DIRECTORS.
(a) From and after the date hereof, at any annual or special
stockholders' meeting called for such purpose, or by written consent in lieu of
a meeting, the Stockholders agree to vote the Shares owned of record or
beneficially by them to, except as provided in Section 7(b), maintain an 8
member Board of Directors and to elect (i) to the Board of Directors of the
Company (A) 3 nominees designated by the Whitney Funds, and (B) 1 nominee
designated by Xxxxx, and (ii) one nominee of the Whitney Funds to each of the
Company's audit committee and compensation committee. All such directors shall
hold office until their respective successors shall have been elected and shall
have qualified. The Company shall provide to such directors the same information
concerning the Company and its Subsidiaries, and access thereto, provided to
other members of the Company's Board of Directors and such committees. The
reasonable travel expenses incurred by any such director in attending any such
meetings shall be reimbursed by the Company to the extent consistent with the
Company's then existing policy of reimbursing directors generally for such
expenses. Within two months following the date hereof, the Company shall
purchase directors' and officers' insurance upon terms and pricing customary for
a company of its size and operating in its industry.
(b) At any time and from time to time, at any annual or special
meeting called for such purpose, or by written consent in lieu of a meeting, the
Stockholders agree, at the
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request of the Whitney Funds, to vote the Shares owned of record or beneficially
by them to increase the number of members of the Board of Directors to 9 and to
elect, in addition to designees of the Whitney Funds and Xxxxx set forth in
Section 7(a), one additional nominee designated by the Whitney Funds.
(c) In the event that the Whitney Funds or Xxxxx, as the case may
be, shall not have a designee serving on the Board of Directors of the Company
for any reason, the Company shall give the Whitney Funds or Xxxxx, as the case
may be, notice of (in the same manner as notice is given to directors), and
permit one Person designated by the Whitney Funds or Xxxxx, as the case may be,
to attend as observer, all meetings of the Company's Board of Directors and all
executive and other committee meetings of the Board of Directors and shall
provide to the Whitney Funds or Xxxxx, as the case may be, the same information
concerning the Company, and access thereto, provided to members of the Company's
Board of Directors and such committees. The reasonable travel expenses incurred
by any such designee of the Whitney Funds or Xxxxx, as the case may be, in
attending any board or committee meetings shall be reimbursed by the Company to
the extent consistent with the Company's then existing policy of reimbursing
directors generally for such expenses.
(d) At any time and from time to time that the Whitney Funds or
Xxxxx (as the case may be) does not have the maximum number of directors serving
on the Board of Directors that such Stockholder is entitled to designate
pursuant to Section 7(a), the Whitney Funds or Xxxxx (as the case may be) shall
be entitled to call a special meeting of the Stockholders for the purpose of
electing such Stockholder's designee to the Board of Directors and, if
necessary, the removal of any directors. If prior to such special meeting all
seats on the Board of Directors are filled, the Whitney Funds and Xxxxx shall
mutually select a director to resign. If such director fails to voluntarily
resign, all Stockholders agree to vote the Shares owned of record or
beneficially by them in favor of such removal.
(e) The parties hereto will cause the Company's Board of Directors
to meet at least once every quarter on as regular a basis as possible, or more
frequently to the extent that the directors designated by the Whitney Funds or
Xxxxx, or in the event no such directors are then serving on the Board of
Directors, an observer designated thereby, reasonably wishes the Board of
Directors to meet.
(f) Any increases in the compensation of any member of management of
the Company and the approval of any bonuses payable to any member of management
shall be approved by the Board of Directors.
(g) At the request of the Whitney Funds or Xxxxx, the Company shall
use its best efforts to cause the board of directors of any Subsidiary of the
Company to be composed of the same nominees designated by such Persons pursuant
to paragraph (a) of this Section 7.
SECTION 8. LEGEND ON STOCK CERTIFICATES. Each certificate of the
signatories hereto representing Shares shall bear a legend substantially in the
form of the following, until such time as the Shares represented thereby are no
longer subject to the provisions hereof:
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"THE SALE, TRANSFER OR ENCUMBRANCE OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A STOCKHOLDERS
AGREEMENT, DATED AS OF MARCH 16, 2001 AMONG TBM HOLDINGS INC. AND CERTAIN
HOLDERS OF ITS OUTSTANDING CAPITAL STOCK, AS SUCH AGREEMENT MAY BE AMENDED.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF TBM HOLDINGS INC."
SECTION 9. DURATION OF AGREEMENT. Subject to the immediately succeeding
sentence, the rights and obligations of each of the Other Stockholders and Colt
under this Agreement shall terminate as to such Stockholder upon the transfer of
all Shares owned by such Stockholder in accordance with this Agreement and the
rights and obligations of each Preferred Stockholder shall terminate as to such
Preferred Stockholder at such time as such Preferred Stockholder owns, of record
or beneficially, less than 10% of the total Shares such Preferred Stockholder
holds immediately following the consummation of the transactions contemplated in
the Purchase Agreement. Upon the consummation of a Qualified Public Offering,
the rights and obligations of each Stockholder under this Agreement shall
terminate.
SECTION 10. REPRESENTATIONS AND WARRANTIES. Each Stockholder represents
and warrants to the other Stockholders as follows:
(a) The execution, delivery and performance of this Agreement by
such Stockholder will not violate any provision of law, any order of any court
or other agency of government, or any provision of any indenture, agreement or
other instrument to which such Stockholder or any of his, her or its properties
or assets is bound, or conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the properties
or assets of such Stockholder.
(b) This Agreement has been duly executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
(c) The Shares of such Stockholder listed on Schedule I hereto
constitute all the shares of capital stock owned by such Stockholder and, except
as set forth in the Transaction Documents, such Stockholder does not have any
right or obligation to acquire any additional shares of capital stock of the
Company.
(d) The representations and warranties contained in this Section 10
shall survive the execution and delivery of this Agreement.
SECTION 11. CALCULATION OF COLT SHARES. For purposes of calculating the
ownership percentage of Colt in Sections 2, 2A, 4 and 6, Colt shall only be
deemed to own 400,000 shares of Common Stock, as such shares may be adjusted for
stock splits, stock combinations or
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reclassifications and as such shares may be reduced by any subsequent sales or
transfers of such shares by Colt. For the avoidance of doubt, all shares held by
Colt, including, without limitation, any options to purchase Common Stock, shall
be included, on a fully-diluted basis, for any calculation required in such
sections that require the inclusion of all issued and outstanding Common Stock.
SECTION 12. COVENANTS. The Company, TBM Capital and Colt hereby agree to
enter into an agreement regarding the fee and payment arrangements for
consulting services. Such agreement shall be consistent with the terms set forth
in that certain Letter of Intent, dated as of February 26, 2001. The form and
substance of such agreement shall be satisfactory to the Preferred Stockholders
in their reasonable discretion. For the avoidance of doubt, any obligation of
the Company to pay any fees, directly or indirectly, to any of TBM Capital
(except as provided in the preceding sentence) or Colt, shall be terminated
including, without limitation, the 1% transaction fee. Any and all accrued but
unpaid fees payable to Colt or any affiliated entities shall be canceled.
SECTION 13. SUBORDINATION OF CERTAIN REGISTRATION RIGHTS. The Company and
TBM Consulting agree to cause each holder of warrants or options to purchase
capital stock of the Company set forth on Section 4.16 of the Disclosure
Schedule (other than Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxx Kiev and VIP) (the
"WARRANT HOLDERS") to amend the provisions of such holders warrants that
provides for registration rights so that such holder's registration rights will
be subordinate, in all respects, to the rights granted to the Purchasers as set
forth in the Registration Rights Agreement. In the event that the Company is
unable to cause each of the Warrant Holders to execute such an amendment within
15 business days from the date hereof, the Company and TBM Consulting agree that
for each day beyond such 15 business day period that the Company and TBM
Consulting has failed to deliver all of such amendments, TBM Consulting shall
forfeit its right to receive $1,400 per day owed to it by the Company pursuant
to that certain consulting services arrangement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED
IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF FLORIDA
APPLICABLE TO AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY
WITHIN SUCH STATE.
SECTION 15. JURISDICTION.
(a) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY AGREES THAT THE
ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT THE
SHARES, OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO
THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND
EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT THE SUCH COURTS
ARE AN INCONVENIENT
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ORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
ITS ADDRESS SET FORTH IN SECTION 14 HEREOF, SUCH SERVICE TO BECOME EFFECTIVE 10
DAYS AFTER SUCH MAILING.
(b) EACH OF THE COMPANY AND THE STOCKHOLDERS HEREBY WAIVES ITS RIGHT
TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS AGREEMENT OR THE SHARES, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
EXCEPT AS PROHIBITED BY LAW, EACH OF THE COMPANY AND THE OTHER STOCKHOLDERS
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. EACH OF THE COMPANY AND THE OTHER STOCKHOLDERS (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF EITHER OF THE WHITNEY FUNDS OR XXXXX HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE WHITNEY FUNDS WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES
THAT BOTH OF THE WHITNEY FUNDS AND XXXXX HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED
HEREIN.
SECTION 16. BENEFITS OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns, legal representatives and heirs. Any purported issuance of Equity
Equivalents by the Company, or Disposition of the Shares, in violation of the
provisions of this Agreement shall be null and void ab initio.
SECTION 17. NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier
(with receipt confirmed), courier service or personal delivery:
(a) if to the Company:
TBM Holdings Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, XX
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
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with a copy to:
Xxxxxx Xxxxxxxx P.C.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
(b) if to the Whitney Funds:
Whitney III, L.P.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxx
Xx. Xxxxxxx X. Xxxxxxxx
(c) if to Xxxxx:
Xxxxx Associates Incorporated
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xx. Xxxxxxxx X. Xxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxxxx Xxxxx, Esq.
Xx. Xxxxxx X. Xxxxx, Esq.
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(d) if to TBM Capital:
TBM Capital II, LLC
0000 Xxx Xxxxxxxx Xxxx.
Xxxxxx, Xxxxx Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxxx P.C.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(e) if to Colt:
Colt Capital LLC
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxxx P.C.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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or to such other address or addresses as shall have been furnished in writing to
the other parties hereto. Each Stockholder agrees, at all times, to provide the
Company with an address for notices hereunder.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; if mailed, five
Business Days (as defined in the Purchase Agreement) after being deposited in
the mail, postage prepaid; or if telecopied, when receipt is acknowledged.
SECTION 18. MODIFICATION. Except as otherwise provided herein, neither
this Agreement nor any provision hereof shall be modified, changed, discharged
or terminated except by an instrument in writing signed by the party against
whom the enforcement of any modification, change, discharge or termination is
sought or by the agreement of all of the Stockholders, subject to this
Agreement; provided, however, that no modification or amendment shall be
effective to reduce the percentage of the Shares the consent of the holders of
which is required under this Section 15.
SECTION 19. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the undersigned with respect to the subject matter contained
herein and supersedes any and all prior agreements or understandings, oral or
written, among any or all of the undersigned relating to such subject matter.
SECTION 20. SIGNATURES; COUNTERPARTS. Telefacsimile transmissions of any
executed original document and/or retransmission of any executed telefacsimile
transmission shall be deemed to be the same as the delivery of an executed
original. At the request of any party hereto, the other parties hereto shall
confirm telefacsimile transmissions by executing duplicate original documents
and delivering the same to the requesting party or parties. This Agreement may
be executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 21. SEVERABILITY. If any one or more of the provisions contained
in this Agreement, or the application thereof in any circumstance, 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 hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions of this Agreement. The parties hereto
further agree to replace such invalid, illegal or unenforceable provision of
this Agreement with a valid, legal and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of such
invalid, illegal or unenforceable provision.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
TBM HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name:
Title:
X.X. XXXXXXX XX, L.P.
By: X.X. Xxxxxxx Equity Partners IV, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name:
Managing Member
X.X. XXXXXXX III, L.P.
By: X.X. Xxxxxxx Equity Partners III, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name:
Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: X.X. Xxxxxxx Equity Partners III, L.L.C.,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name:
Managing Member
LEG PARTNERS III SBIC, L.P.
By: Xxxxx XX-XX, LLC,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Xxxxxxxx X. Xxxxx, President
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LEG PARTNERS DEBENTURE SBIC, L.P.
By: Xxxxx XX-XX, LLC,
its General Partner
/s/Xxxxxxxx X. Xxxxx
By: ____________________________________
Xxxxxxxx X. Xxxxx, President
COLT CAPITAL LLC
By: Colt Services, Inc.
its Manager
/s/Xxxxxx X Xxxxxxxx
By: ____________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
TBM CAPITAL II, LLC
/s/Xxxxxxx X. Xxxxxxxx
By: ____________________________________
Name:
Title:
[SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
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LEG PARTNERS, L.P.
By: LEG GP, L.P.,
its General Partner
By: Xxxxx XX Corporation,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
____________________________________
Xxxxxxxx X. Xxxxx, President
LEG PARTNERS SBIC, L.P.
By: Xxxxx XX II Corporation,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
____________________________________
Xxxxxxxx X. Xxxxx, President
LEG PARTNERS II, L.P.
By: Xxxxx XX II, L.L.C.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
____________________________________
Xxxxxxxx X. Xxxxx, Manager
[SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
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