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STOCKHOLDERS AGREEMENT
among
DIAMOND BRANDS INCORPORATED,
SEAVER KENT - TPG PARTNERS, L.P.,
SEAVER KENT I PARALLEL, L.P.,
and
NARESH K. NAKRA
and
THE STOCKHOLDERS NAMED HEREIN
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Dated as of April 21, 1998
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STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of April 21, 1998
(this "Agreement"), among Diamond Brands Incorporated, a
Minnesota corporation (the "Company"), Seaver Kent - TPG
Partners, L.P., a Delaware limited partnership ("SK-TPG
Partners"), Seaver Kent I Parallel, L.P., a Delaware limited
partnership ("SK Parallel" and, together with SK-TPG Partners,
"SKC"), and Naresh K. Nakra and each of the parties listed on
Exhibit A hereto (each, a "Rollover Stockholder" and collectively
the "Rollover Stockholders") and each of the parties listed on
Exhibit B hereto (each, along with Naresh K. Nakra and each
Rollover Stockholder, an "Investor" and collectively, the
"Investors").
WHEREAS, as of the date hereof, each of SKC and the
Investors owns the securities of the Company as set forth on
Exhibit C hereto; and
WHEREAS, the parties hereto wish to restrict the
transfer of the Shares (as hereinafter defined) and to provide
for certain other rights under certain conditions.
NOW, THEREFORE, in consideration of the mutual
promises and agreements set forth herein, the adequacy of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Affiliate" of any Person means such Person's spouse
and descendants and any trust solely for the benefit of such
Person and/or such Person's spouse and/or descendants and any
other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with such Person. For the
purposes of this definition, "control," when used with respect to
any Person, means the power to direct or cause the direction of
the management or policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in the State of New
York are authorized or required by law or executive order to
close.
"Commission" means the Securities and Exchange
Commission or any similar agency then having jurisdiction to
enforce the Securities Act.
"Common Stock" means Common Stock, par value $.01 per
share, of the Company or any other capital stock of the Company
into which such stock is reclassified or reconstituted.
"HSR Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"Initial Public Offering" means the Company's initial
Public Offering resulting in net proceeds to the Company of at
least $50 million.
"Involuntary Transfer" means any transfer, proceeding
or action by or in which a Stockholder shall be deprived or
divested of any right, title or interest in or to any of the
Shares, including, without limitation, any seizure under levy of
attachment or execution, any transfer in connection with
bankruptcy (whether pursuant to the filing of a voluntary or an
involuntary petition under the United States
Bankruptcy Code of 1978, or any modifications or revisions
thereto) or other court proceeding to a debtor in possession,
trustee in bankruptcy or receiver or other officer or agency, any
transfer to a state or to a public officer or agency pursuant to
any statute pertaining to escheat or abandoned property and any
transfer pursuant to a divorce or separation agreement or a final
decree of a court in a divorce action.
"Involuntary Transferee" has the meaning assigned such
term in Section 3.3.1.
"New Issuance" has the meaning assigned such term in
Section 3.4.
"Offered Securities" has the meaning assigned such
term in Section 3.1.1.
"Offering Notice" has the meaning assigned such term
in Section 3.1.1.
"Offer Price" has the meaning assigned such term in
Section 3.1.1.
"Permitted Transferees" has the meaning assigned such
term in Section 2.2.
"Person" means any individual, firm, corporation,
partnership, limited liability company, trust, incorporated or
unincorporated association, joint venture, joint stock company,
governmental body or other entity of any kind.
"Public Offering" means any offer for sale of Common
Stock pursuant to an effective Registration Statement filed under
the Securities Act, other than on a Form S-4 or Form S-8.
"Registration Statement" means a registration
statement filed pursuant to the Securities Act.
"Rightholder" has the meaning assigned such term in
Section 3.2.1.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
thereunder.
"Selling Stockholder" has the meaning assigned such
term in Section 3.1.1.
"Series A Preferred Stock" has the meaning assigned
such term in the recitals to this Agreement.
"Shares" means, with respect to each holder of Common
Stock, all shares, whether now owned or hereafter acquired, of
Common Stock owned thereby; provided, however, that for the
purposes of any computation of the number of Shares either
outstanding or held by any Stockholder or otherwise to be
determined pursuant hereto, including for purposes of voting in
Section 4.1 the shares of Common Stock issuable upon conversion,
exercise or exchange of all securities or obligations which are
by their terms convertible into shares of Common Stock and any
option, warrant or other subscription or purchase right with
respect to Common Stock shall be deemed outstanding whether or
not such conversion, exercise or exchange has actually been
effected.
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"Stockholders" shall mean SK-TPG Partners, SK
Parallel, the Investors and any transferee thereof or other
holder of capital stock of the Company who has agreed to be bound
by the terms and conditions of this Agreement in accordance with
Section 2.4, and the term "Stockholder" shall mean any such
Person.
"SK Transferee" has the meaning assigned such term in
Section 3.2.1.
"Third Party Purchaser" has the meaning assigned such
term in Section 3.1.1.
"transfer" has the meaning set forth in Section 2.1.
2. Restrictions on Transfer of Shares.
2.1. Limitation on Transfer. No Stockholder shall
sell, give, assign, hypothecate, pledge, encumber, grant a
security interest in or otherwise dispose of (whether by
operation of law or otherwise) (each a "transfer") any Shares or
any right, title or interest therein or thereto, except in
accordance with the provisions of this Agreement; provided,
however, that any transferee obtaining any interest in or right
to vote such Shares hereunder shall agree to be bound by this
Agreement and shall comply with Section 2.4. Any attempt to
transfer any Shares or any rights thereunder in violation of the
preceding sentence shall be null and void ab initio and the
Company shall not register any such transfer.
2.2. Permitted Transfers. Notwithstanding anything to the
contrary contained in this Agreement, but subject to Sections 2.3
and 2.4, each of the Stockholders may transfer Shares in
accordance with this Section 2.2 (the Persons to whom the
Stockholders may so transfer Shares are referred to hereinafter
as "Permitted Transferees").
2.2.1. Transfers by SKC. At any time, SKC may,
subject to Section 3.2, transfer Shares to any Person.
2.2.2. Transfers by Investors. At any time, each
Investor may (subject to Sections 2.3 and 2.4), transfer
Shares to any of their respective Affiliates, any other
Investor, to SKC or to a successor trust to such Investor
which has the same beneficiaries. At any time, each
Investor may, subject to Section 3.1, transfer Shares to
any Person.
2.3. Permitted Transfer Procedures. If any Stockholder
wishes to transfer Shares to a Permitted Transferee under this
Section 2, such Stockholder shall give notice to the Company of
its intention to make any transfer permitted under this Section 2
not less than ten (10) days prior to effecting such transfer,
which notice shall state the name and address of each Permitted
Transferee to whom such transfer is proposed and the number of
Shares proposed to be transferred to such Permitted Transferee.
2.4. Transfers in Compliance with Law; Substitution of
Transferee. Notwithstanding any other provision of this
Agreement, no transfer may be made pursuant to this Section 2 or
Section 3 unless (a)
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the Permitted Transferee has agreed in writing to be bound by the
terms and conditions of this Agreement, (b) the transfer complies
in all respects with the applicable provisions of this Agreement,
and (c) the transfer complies in all respects with applicable
federal and state securities laws, including, without limitation,
the Securities Act. If requested by the Company in its reasonable
judgment, an opinion of counsel, for such transferring
Stockholder shall be supplied to the Company at such transferring
Stockholder's expense, to the effect that such transfer complies
with the applicable federal and state securities laws; provided,
however, that no such opinion shall be required with respect to a
transfer to a successor trust to an Investor which has the same
beneficiaries. Any attempt to transfer any Shares or rights
hereunder in violation of this Agreement shall be null and void
ab initio and the Company shall not register such transfer. Upon
becoming a party to this Agreement, a Permitted Transferee shall
be substituted for, and shall enjoy the same rights and be
subject to the same obligations as its predecessor hereunder only
to the extent that this Agreement specifically states that such
Permitted Transferee shall enjoy the particular right or be
subject to the particular obligation of its predecessor, as the
case may be.
3. Proposed Voluntary Transfers.
3.1. Proposed Voluntary Transfers by an Investor.
3.1.1. Offering Notice. If an Investor (a
"Selling Stockholder") wishes to sell or otherwise transfer
all or any portion of its Shares to any Person (other than
to a Permitted Transferee that is an Affiliate thereof) (a
"Third Party Purchaser"), such Selling Stockholder shall
offer such Shares first to the Company by sending written
notice (the "Offering Notice") to the Company, which shall
state (a) the number of Shares proposed to be sold or
otherwise transferred (the "Offered Securities") and (b)
the proposed purchase price per Share which the Selling
Stockholder is willing to accept (the "Offer Price"). Upon
delivery of the Offering Notice, such offer shall be
irrevocable unless and until the rights of first offer
provided for herein shall have been waived by the Company
or shall have expired under Section 3.1.2.
3.1.2. The Company's Option. For a period of
fifteen (15) days after the giving of the Offering Notice
pursuant to Section 3.1.1 (the "Option Period"), the
Company or its designee shall have the right to purchase
all (but not less than all) of the Offered Securities at a
purchase price equal to the Offer Price and upon the terms
and conditions set forth in the Offering Notice.
3.1.3. Exercise of Option. The option of the
Company under Section 3.1.2 shall be exercisable by
delivering written notice of the exercise thereof, prior to
the expiration of the 15-day period referred to in Section
3.1.2, to the Selling Stockholder with a copy to the other
stockholders. The failure of the Company to respond within
such 15-day period to the Selling Stockholder shall be
deemed to be a waiver of its rights under Sections 3.1.1
and 3.1.2.
3.1.4. Closing of the Sale to the Company (or its
designee). If the Company exercises its option under Section
3.1.2, the closing of the purchase of Offered Securities by
the Company (or its designee) under Section 3.1.2 shall be
held at the principal office of the Company at 11:00 a.m.,
local time, on the 45th day after the giving of the Offering
Notice pursuant to Section 3.1.1 or at such other time and
place as the parties to the transaction may agree. At such
closing, the Selling Stockholder shall deliver to the
Company (or its designee) certificates representing the
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Offered Securities, duly endorsed for transfer and
accompanied by all requisite transfer taxes, if any, and
such Offered Securities shall be free and clear of any
liens, claims, options, charges, encumbrances or rights
(other than those arising hereunder), and the Selling
Stockholder shall so represent and warrant, and shall
further represent and warrant that it is the sole beneficial
and record owner of such Offered Securities. The Company (or
its designee purchaser) shall deliver at the Closing to the
Selling Stockholder payment in full in immediately available
funds for the Offered Securities purchased by it. At such
Closing, all of the parties to the transaction shall execute
such additional documents as are otherwise necessary or
appropriate.
3.1.5. Sale to Third Party Purchaser. Unless the
Company elects to purchase all of the Offered Securities
pursuant to Section 3.1.2, the Selling Stockholder may sell
the offered securities to the Third Party Purchaser at a
price per Share equal to the Offer Price set forth in the
Offering Notice and otherwise on the terms and conditions
set forth in the Offering Notice; provided, however, that
such sale is bona fide and made pursuant to a contract
entered into within sixty (60) days of the earlier of the
waiver by the Company of its option to purchase the Offered
Securities or the expiration of the Option Period (the
earlier of such dates being referred to herein as the
"Contract Date"); and provided, further, that there is full
compliance with Section 2.4.
If such sale is not consummated within forty-five (45) days of
the Contract Date for any reason, then the restrictions provided
for herein shall again become effective, and no transfer of such
offered Securities may be made thereafter by the Selling
Stockholder without again offering the same to the Company in
accordance with this Section 3.1.
3.2. Proposed Voluntary Transfers by SKC; Tag Along Right
and Bring Along Right.
3.2.1. Tag Along Right.
(a) If SKC shall have received a bona fide
offer from (or shall have entered into a bona fide written
agreement with) a Person or Persons that is not an
Affiliate of SKC (each, a "SKC Transferee") to purchase
greater than 10% of SKC's Shares in the aggregate in a
transaction or series of substantially contemporaneous
transactions, then SKC shall send written notice to the
Stockholders and their respective Permitted Transferees
(each, a "Rightholder") which shall state (i) the number of
Shares proposed to be sold or otherwise transferred to the
SKC Transferees (the "SKC Offered Securities"), (ii) the
proposed purchase price per Share to be paid by the SKC
Transferees, (iii) the name of the SKC Transferees and (iv)
the projected closing date of the sale or transfer of the
SKC Offered Securities, which in no event shall be prior to
fifteen (15) days after the giving of such written
notice to each Rightholder and (v) that SKC shall
sell or otherwise transfer the SKC Offered Securities
subject to the rights of each Rightholder contained in this
Section 3.2.1.
(b) For a period of fifteen (15) days after
the giving of the notice pursuant to clause (a) above, each
Rightholder shall have the right to sell to the SKC
Transferees that number of Shares held by such Rightholder
equal to that percentage of the SKC Offered Securities
determined by multiplying (i) the number of SKC Offered
Securities by (ii) a fraction derived by dividing (x) the
total number of Shares then owned by such Rightholder, by
(y) the total number of
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Shares owned by all holders of Common Stock participating in
the sale to the SKC Transferees (including the Shares owned
by SKC, such Rightholder and all other Rightholders). To the
extent that such Rightholder exercises its right to sell
Shares pursuant to this Section 3.2.1, the number of Shares
of SKC Offered Securities to be sold to the SKC Transferees
by SKC shall be reduced proportionately.
(c) The rights of each Rightholder under
this Section 3.2.1 shall be exercisable by delivering
written notice thereof, prior to the expiration of the
15-day period referred to in clause (b) above, to SKC with
a copy to the Company. The failure of such Rightholder to
respond within such period to SKC shall be deemed to be a
waiver of its rights, as the case may be, under Section
3.1.2.
3.2.2. Bring Along Right. If SKC shall have
received a bona fide offer from a SKC Transferee to
purchase all of its Shares, then SKC shall have the right
to deliver a written notice (a "Buyout Notice") to each
Stockholder which shall state (i) that SKC proposes to
effect such transaction, (ii) the proposed purchase price
per Share to be paid by the SKC Transferee, and (iii) the
name of the SKC Transferee, and which attaches a copy of
any written agreement between SKC and the other parties to
such transaction which establishes the terms of such
transaction. Each such Stockholder agrees that, upon
receipt of a Buyout Notice, each such Stockholder shall be
obligated to sell all of its Shares upon the same terms and
conditions of such transaction applicable to SKC, unless
such sale would result in a violation of applicable laws or
regulations (and otherwise take all necessary action to
cause consummation of the proposed transaction, including
voting such Shares in favor of such transaction);
including, without limitation the same per Share
consideration as received by SKC.
3.3. Involuntary Transfers.
3.3.1. Rights of First Offer Upon Involuntary
Transfer. If an Involuntary Transfer of any Shares (the
"Transferred Shares") owned by an Investor or its Permitted
Transferees shall occur, the Company (or its designee)
shall have the same rights as specified in Section 3.1.3
with respect to such Transferred Shares as if the
Involuntary Transfer had been a proposed voluntary transfer
by a Selling Stockholder; provided, however, that (a) the
time periods shall run from the date of receipt by the
Company of notice of the Involuntary Transfer and (b) such
rights shall be exercised, as set forth in Section 3.3.2,
by notice to the involuntary transferee of such Transferred
Shares (the "Involuntary Transferee") rather than to the
Stockholder who suffered or will suffer the Involuntary
Transfer.
3.3.2. Company Option. For a period of 30 days
after the receipt by the Company of notice of the
Involuntary Transfer in accordance with Section 3.3.1(a)
hereof, the Company or its designee shall have the right to
purchase all of the Transferred Shares at the purchase
price set forth in Section 3.3.4 by delivering written
notice, prior to the expiration of such 30-day period, to
the Involuntary Transferee, with a copy to SKC and the
other Stockholders. The failure of the Company to respond
within such 30-day period shall be deemed to be a waiver of
the Company's rights under this Section 3.3.2.
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3.3.3. SKC and Investor Options. If the Company
does not elect to purchase all of the Transferred Shares
owned by the Investors or its Permitted Transferees
pursuant to Section 3.3.2, then for a period of sixty (60)
days after the receipt by the Stockholders of notice of the
Involuntary Transfer of such Transferred Shares in
accordance with Section 3.3.1(a) hereof, each of SKC and
the Investors shall have the right to purchase that
percentage of such Transferred Shares determined by
dividing (a) the total number of Shares then owned by SKC
(in the case of a purchase by SKC) or the Investors (in the
case of a purchase by an Investor) as the case may be, by
(b) the total number of Shares held by SKC or the Investors
in the aggregate, by delivering written notice, prior to
the expiration of such 60-day period, to the Involuntary
Transferee, with a copy to the Company. If SKC or any
Investor as the case may be, does not elect to purchase all
of the Transferred Shares that it is entitled to purchase
pursuant to this Section 3.3.3, then the other or others,
if such other or others elected to purchase all of the
Transferred Shares that it is entitled to purchase pursuant
to this Section 3.3.3, shall have the right to purchase all
of such Transferred Shares not so purchased. The failure of
SKC or an Investor, as the case may be, to respond within
such 60-day period shall be deemed to be a waiver of its
rights under this Section 3.3.3.
3.3.4. Purchase Price. If the Company, SKC, or an
Investor, as the case may be, elects to purchase all of the
Transferred Shares, then the Company, SKC, or the Investor,
as the case may be, shall purchase the Transferred Shares
at a purchase price equal to the Fair Value (as hereinafter
defined) thereof. The Fair Value of the Transferred Shares
shall be determined by an independent appraiser, which
shall be a nationally recognized independent investment
banking firm or nationally recognized independent expert
experienced in the valuation of corporations. The
determination of the appraiser shall be conclusive and
binding upon the Company, SKC, and the Investors. If the
Company elects to purchase all of the Transferred Shares
pursuant to Section 3.3.2, then within five (5) Business
Days of such election, the Company shall appoint such
appraiser. In the event that the Company does not elect to
purchase all of the Transferred Shares, (a) if SKC elects
to purchase the Transferred Shares pursuant to Section
3.3.3, then SKC appoint such appraiser within five (5)
Business Days of such election and (b) if SKC does not
elect to purchase the Transferred Shares that it is
entitled to purchase pursuant to Section 3.3.3, then the
Investors who elected to purchase the Transferred Shares
shall appoint such appraiser within five (5) Business Days
of such election. For purposes of this Section 3.3.4, the
"Fair Value" of the Transferred Shares means the fair
market value of the such Transferred Shares determined by
the appraiser based upon all considerations that the
appraiser determines to be relevant.
3.35. Closing. The closing of any purchase under
this Section 3.3 shall be held at the principal office
of the Company at 11:00 a.m., local time, on the fifth
Business Day after delivery of written notice to the
Involuntary Transferee in accordance with Section 3.3.2
or Section 3.3.3, as applicable, or at such other time
and place as the parties to the transaction may agree.
At such closing, the Involuntary Transferee shall
deliver to the Company, SKC, or the Investor, as the
case may be, certificates, if applicable, or other
instruments or documents representing the Transferred
Shares being purchased under this Section 3.3, duly
endorsed with a signature guarantee for transfer and
accompanied by all requisite transfer taxes, if any,
and such Transferred Shares shall be free and clear of
any Liens, including, without limitation, any Lien
arising through the action or inaction of
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the Involuntary Transferee, and the Involuntary
Transferee shall so represent and warrant, and shall
further represent and warrant that it is the beneficial
owner of such Transferred Shares. The Company, SKC, or the
Investor, as the case may be, shall deliver to the
Involuntary Transferee at the closing payment in full in
immediately available funds for such Transferred Shares. At
such closing, all of the parties to the transaction shall
execute such additional documents as are otherwise
necessary or appropriate.
3.3.6. General. In the event that the provisions
of this Section 3.3 shall be held to be unenforceable with
respect to any particular Involuntary Transfer, the
Company, SKC, and the Investors shall have the rights
specified in Section 3.3 with respect to any transfer by an
Involuntary Transferee of such Shares, and each Stockholder
agrees that any Involuntary Transfer shall be subject to
such rights, in which case the Involuntary Transferee shall
be deemed to be the Selling Stockholder for purposes of
Section 3.1 of this Agreement and shall be bound by the
provisions of Section 3.1 and the other provisions of this
Agreement.
3.3.7. Issuances of Capital Stock by the Company;
Preemptive Right. The Company shall give each of the
Stockholders and their respective Affiliates who are
Permitted Transferees thirty (30) days' prior written
notice of the proposed issuance of any capital stock or any
security convertible for or exchangeable into capital stock
(each a "New Issuance") (other than capital stock, not in
excess of ten percent of the outstanding capital stock, on
a fully diluted basis, to be issued in connection with an
employee stock option plan that is approved by the
Company's Board of Directors, an issuance of capital stock
as a stock split or stock dividend, an issuance of capital
stock pursuant to the exercise of any option, warrant or
convertible security outstanding on the date of this
Agreement, an issuance of capital stock pursuant to the
exercise of any option, warrant or convertible security
issued after the date hereof, or the issuance of capital
stock upon the conversion of any share of convertible
capital stock outstanding on the date hereof or upon
conversion of any share of convertible capital stock
subsequently issued in respect of shares of convertible
capital stock outstanding on the date hereof). Such notice
shall specify the number and class of securities to be
issued, the rights, terms and privileges thereof and the
price at which such securities will be issued. By written
notice to the Company given within fifteen (15) days of
being notified of such New Issuance, each such Stockholder
shall be entitled to purchase that percentage of the New
Issuance determined by dividing (a) the total number of
Shares owned by such Stockholder by (b) the sum of (i) the
total number of Shares then owned by all Stockholders
participating in such purchase (including such
Stockholder's Shares) plus (ii) the total number of shares
of Common Stock owned by other stockholders of the Company
which have been granted preemptive rights which are similar to
those provided to the Stockholders in this Section 3.4 and
which are participating in such purchase, whether or not such
conversion, exercise or exchange has actually been
effective); provided, however, that no Stockholder shall
have any right to purchase securities pursuant to this
Section 3.4 if such securities to this Section 3.4 would be
required to be registered under the Securities Act when the
securities being issued in the New Issuance would not
otherwise be required to be so registered. If any such
Stockholder (or any other Person which has been granted
preemptive rights which are similar to those provided to
the Stockholders in this Section 3.4) does not fully
subscribe for the number or amount of shares of capital
stock or securities convertible for or exchangeable into
capital stock that it is entitled to purchase (or that it
would otherwise have been entitled to purchase but for
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the proviso to the preceding sentence) pursuant to this Section
3.4, then each Stockholder participating in such purchase
to the full extent provided for in the preceding sentence
shall have the right to purchase that percentage of the New
Issuance not so subscribed for, determined by dividing (a)
the total number of Shares then owned by such fully
participating Stockholder by (b) the total number of Shares
then owned by all fully participating Stockholders who
elect to purchase shares or other securities pursuant to
this Section 3.4 (including such Stockholder's Shares).
The closing of any purchase pursuant to this Section 3.4
shall be held at the time and place of the closing of, and on the
same terms and conditions as, the New Issuance, or at such other
time and place as the parties to the transaction may agree.
4. Corporate Governance.
4.1. Director and Observer; Voting. So long as the
Rollover Stockholders, together with their Affiliates own in the
aggregate Shares representing more than 10% of the outstanding
Shares, the Rollover Stockholders shall be entitled to elect one
member of the Company's Board of Directors and to designate one
individual to attend (whether by person or by telephone) and
observe any regular or special meeting of the Company's Board of
Directors. The Company's Board of Directors shall be the
operative decision making body of the Company and its
Subsidiaries. All reasonable out-of-pocket expenses of such
director and observer incurred in connection with attending any
such meeting shall be paid by the Company. All of the
Stockholders agree that all of the Common Stock will be voted
and/or stockholder consents provided with respect thereto in
order to effect the first sentence of this section and will be
voted otherwise in such proportions as to provide voting power to
each of the Stockholders (as so directed in writing by such
Stockholder) in the same proportion as such Stockholder would
have been entitled to vote the Common Stock if all warrants
outstanding as of this date of this Agreement had been exercised
in full, and each Stockholder hereby irrevocably appoints SK-TPG
as its proxy for purposes of voting any shares of Common Stock
held by such Stockholder in accordance with these provisions so
long as this Agreement is effective; provided, however, that the
provisions of this sentence shall terminate and be of no force or
effect at such time as a majority of the outstanding shares of
Common Stock of the Company are owned, collectively, by the
owners of the warrants outstanding as of the date of this
Agreement and their assigns; provided, further, that in
connection with any merger or sale of assets involving the
Company, the Company shall extend to all Stockholders such
dissenters' rights as would have been available to an objecting
stockholder under applicable Minnesota law. Notwithstanding the
preceding sentence, each of Mellon Bank as Trustee of the General
Motors Employes Domestic Group Pension Trust (and its successors
and assigns to any Shares) and New York Life Insurance Company
(and its successor and assigns to any Shares) does not appoint
SK-TPG as its proxy but does agree to vote any shares of Common
Stock as to which it is entitled to vote in the same manner as a
majority of the shares of Common Stock voted by the other
Stockholders in accordance with the foregoing so long as the
provisions of the preceding sentence remain in effect.
4.2. Affiliated Transactions. The Company shall not
conduct any business or enter into any transaction with or for
the benefit of any Stockholder unless the terms of such business
or transaction are not materially less favorable to the Company
than those that could be obtained in a comparable arm's-length
transaction with a non-affiliate and are approved by the
Company's Board of Directors after full disclosure thereof.
Notwithstanding the foregoing limitation, the Company may enter
into any or all of the following:
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4.2.1. The payment of compensation for the
personal services of officers, directors and employees, so
long as the Company's Board of Directors in good faith
shall have approved the terms thereof and deemed the
services to be performed for such compensation to be fair
consideration therefor.
4.2.2. The payment of reasonable fees to members
of the Board of Directors.
4.2.3. Indemnities of officers and directors.
5. Registration Rights.
5.1. Right to Include in Initial Public Offering.
Each Investor who owns more than 1% of the shares shall be permitted
to include their Shares in an Initial Public Offering and
subsequent Public Offerings of the Company on the same basis as
SKC. Each Investor and SKC agrees that, in connection with each
underwritten Public Offering of the Company, Investor or SKC, as
applicable, shall not sell or transfer, or offer to sell or
transfer, any equity securities of the Company for such period as
the managing underwriter of such offering reasonably determines
is necessary to effect the underwritten Public Offering not to
exceed 120 days.
5.2. Underwriting Adjustment. If the Initial Public
Offering referred to in Section 5.1 involves an underwritten
offering, and the Company's managing underwriter shall advise the
Company that, in its opinion, the number of Shares that are held
by stockholders who have the right to register their Common Stock
pursuant to such Initial Public Offering and that are requested
to be included in such offering exceeds the number which can be
sold in such offering, then the Company will include in such
offering, to the extent of the number of Shares which the Company
is so advised can be sold in such offering any Shares that each
of the Investors proposes to include in such offering pro rata on
the basis of the percentage of Shares requested by all
stockholders to be included thereby in such offering.
5.3. Expenses. With respect to any Registration
Statement that includes any Shares pursuant to Sections 5.1 and
5.2, the Company shall pay all reasonable expenses (other than
underwriting discounts and commissions) whether or not such
registration becomes effective.
5.4. Registration Procedures.
5.4.1. General. Whenever SKC requests that any shares
of Common Stock ("Registrable Shares") be registered pursuant to
this Agreement, the Company shall, as expeditiously as reasonably
possible:
(a) In connection with the preparation and filing
of each registration statement registering Registrable Shares
under this Agreement, the Company will give the holders of
Registrable Shares on whose behalf such Registrable Shares are to
be so registered and the underwriter and their respective counsel
and accountants, a reasonable opportunity to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment
thereof or
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supplement thereto, and will give each of them such
access to its books and records and such opportunities to discuss
the business of the Company with its officers, its counsel and
the independent public accountants who have certified its
financial statements, as shall be reasonably necessary, in the
opinion of such holders or such underwriters or their respective
counsel, in order to conduct a reasonable and diligent
investigation within the meaning of the Securities Act. Without
limiting the foregoing, each registration statement, prospectus,
amendment, supplement or any other document filed with respect to
a registration under this Agreement shall be subject to review
and reasonable approval by the holders of Registrable Shares in
such registration and by their counsel with respect to provisions
relating to such holders.
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective for a period of not
less than 120 days or such shorter period which will terminate
when all Registrable Shares covered by such registration
statement have been sold (but not before the expiration of the 90
day period referred to in Section 4(3) of the Securities Act and
Rule 174 or other comparable provisions thereunder, if
applicable), and comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all
securities covered by such registration statement during the
applicable period.
(c) furnish to each holder of Registrable
Shares included in such registration statement, upon request, and
the managing underwriter or underwriters, without charge, at least
one copy of the registration statement and any post-effective
amendment thereto and such number of copies of the prospectus
(including any preliminary prospectus) and any amendments or
supplements thereto, as such holder of Registrable Shares or
managing underwriter may reasonably request in order to
facilitate the disposition of the Registrable Shares being sold
by such holder.
(d) notify any holder on whose behalf
Registrable Shares are being registered under this Agreement of
any stop order issued or threatened by the Commission and take all
reasonable actions required to prevent the entry of such stop
order or to remove it if entered and make every reasonable effort
to obtain the withdrawal of any order suspending the
effectiveness of the registration statement at the earliest
possible moment.
(e) enter into a written agreement with the
managing underwriter or underwriters selected by the Company in
such form and containing such representations and warranties by
the Company and such other terms and provisions as are
customarily contained in the underwriting agreements with respect
to secondary distributions, including, without limitation,
provisions relating to indemnification and contribution. The
holders on whose behalf Registrable Shares are to be distributed
by such underwriters shall be parties to any such underwriting
agreement, and the representations and warranties by, and the
other agreements on the part of, the Company to and for the
benefit of such underwriters shall also be made to and for the
benefit of such holders of Registrable Shares. The indemnity
provisions of such underwriting agreement shall comply with the
provisions of Section 5.4.2.
(f) on or prior to the date on which the
registration statement is declared effective, use its reasonable
best efforts to register or qualify, and cooperate with the
holders of Registrable Shares included in such registration
statement, the underwriter or underwriters, and their counsel in
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connection with the registration or qualification of, the
Registrable Shares covered by the registration statement for
offer and sale under the securities or blue sky laws of each
state and other jurisdiction of the United States as any such
underwriter reasonably requests in writing, to use its best
efforts to keep each such registration or qualification
effective, including through new filings, or amendments or
renewals, during the period such registration statement is
required to be kept effective and to do any and all acts or
things necessary or advisable to enable the disposition in all
such jurisdictions of the Registrable Shares covered by the
applicable registration statement, provided, however, that the
Company will not be required (i) to qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this subsection (f), (ii) to subject
itself to taxation in any such jurisdiction or (iii) to consent
to general service of process in any such jurisdiction.
(g) use its reasonable best efforts to cause
all such Registrable Shares included in such registration statement
to be listed by the date of the first sale of Registrable Shares
pursuant to such registration statement on each securities
exchange on which securities issued by the Company are then
listed or proposed to be listed, if any.
(h) make available for inspection, during normal
business hours, by any holder on whose behalf Registrable Shares
are being registered under this Agreement, any underwriter
participating in any disposition pursuant to such registration
statement, and any attorney, accountant, or other agent retained
by any such holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent
corporate documents, and properties of the Company and its
Subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors, and
employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement.
Records which the Company determines, in good faith, to be
confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a
material misstatement or omission in the registration statement
or (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or
is otherwise required by law or regulation. The holder on whose
behalf Registrable Shares are being registered under this
Agreement agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give
notice, to the extent practicable, to the Company and allow
the Company, at the Company's expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential.
(i) furnish, at the reasonable request of any
holder of Registrable Shares sold in such offering, on any date
that any Registrable Share is delivered to the underwriters for
sale pursuant to such registration: (i) an opinion dated such
date from counsel representing the Company for the purposes of
such registration, addressed to the underwriters and to such
holder, covering such matters with respect to the registration as
are customarily covered in the opinions of issuers' counsel
delivered to underwriters in connection with underwritten public
offerings of securities (including with respect to such
registration statement and the prospectus included therein), and
(ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to such seller,
covering such matters (including information with respect to
events subsequent to the date of such financial statements) with
respect to the registration (including with respect to such
registration statement and the prospectus included therein) in
respect of which
-12-
such letter is being given as are customarily covered in
accountant's letters delivered to underwriters in connection with
underwritten public offerings of securities.
Each holder of Registrable Shares as to which
registration is being effected pursuant hereto shall use its best
efforts to cooperate with the Company, and the Company may
require each seller of Registrable Shares as to which any
registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the
Company may from time to time reasonably request in writing.
5.4.2. Indemnification.
(a) Indemnification by Company. The Company
agrees to indemnify and to save and hold harmless each holder of
Registrable Shares and any underwriter, the officers, directors
and partners and partners of partners, and each person who
controls such holder or any such underwriter (within the meaning
of the Securities Act or the Exchange Act) from and against any
and all losses, claims, damages, liabilities, and expenses
(including reasonable attorneys fees and expenses and reasonable
costs of investigation) to which the holder or underwriter or any
such other person may be subject, under the Securities Act or
otherwise, arising out of or based on any untrue or alleged
untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Shares or in
any amendment or supplement thereto or in any preliminary
prospectus or any other document incident to the registration of
Registrable Shares under the Securities Act or the qualification
of the Registrable Shares under any state securities laws, or
arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
arising out of or based upon any violation or alleged violation
by the Company of the Securities Act, the Exchange Act or any
other federal or state securities laws, rules or regulations
applicable to the Company and relating to action or inaction by
the Company in connection with any such registration or
qualification, except insofar as the same arise out of reliance
upon any untrue statement or omission furnished in writing to the
Company by such holder (or, if it is an underwritten offering, an
underwriter selected by such holders), expressly for use therein.
The Company will, pursuant to a separate agreement, agree to
indemnify the underwriters thereof, their officers, directors and
partners and partners of partners, and each person who
controls (within the meaning of the Securities Act) such
underwriters (collectively, "Securities Professionals") to the
same extent as provided above.
(b) Indemnification by Holder of Registrable
Shares. In connection with any registration statement in which a
holder of Registrable Shares is participating, each such holder
will furnish to the Company in writing such information and
affidavits with respect to such holder as the Company reasonably
requests for use in connection with any such registration
statement or prospectus and agrees to indemnify, to the extent
permitted by law, each of the Company's directors and officers,
and each Person who controls the Company (within the meaning of
the Securities Act) and, the underwriters, against any losses,
claims, damages, liabilities, and expenses arising out of or
based on any untrue statement of a material fact or any omission
of a material fact required to be stated in the registration
statement or prospectus or any amendment thereof or supplement
thereto or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such
untrue statement or omission is made in reliance upon and in
conformity with information with respect to such holder furnished
in writing to the Company by such holder
-13-
specifically for use in such registration statement or prospectus
or amendment thereof or supplement thereto; provided, however,
that the liability of any such holder under this Section 5.4.2
(including, without limitation, subsection (c) below) shall in no
event exceed the net proceeds of the sale of Registrable Shares
being sold pursuant to said registration statement or prospectus
by such holder.
(c) Contribution. If the indemnification
provided for in this Section 5.4.2 is unavailable to an indemnified
under this Section 5.4.2 in respect of any losses, claims,
party damages, liabilities, expenses or judgments referred to herein,
then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages, liabilities, expenses and judgements (i) as between the
Company and such holders on the one hand and the Securities
Professionals on the other, in such proportion as is appropriate
to reflect the relative benefits received by the Company and such
holders on the one hand and the Securities Professionals on the
other from the offering of the Registrable Shares, or if such
allocation is not permitted by applicable law, in such proportion
as is appropriate to reflect not only such relative benefits, but
also the relative fault of the Company and such holders on the
one hand and of the Securities Professionals on the other in
connection with the statements or omissions which result in such
losses, claims, damages, liabilities, expenses or judgements as
well as any other relevant equitable considerations and (ii) as
between the Company on the one hand and each such holder on the
other, in such proportion as is appropriate to reflect the
relative fault of the Company and of each such holder in
connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and such holders on the one hand and the
Securities Professionals on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting
expenses) received by the Company and such holders bear to the
total underwriting discounts and commissions received by the
Securities Professionals, in each case as set forth in the table
on the cover page of the prospectus. The relative fault of the
Company, of each such holder and of the Securities Professionals
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by such party, and the party's relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and
such holders agree that it would not be just and equitable if
contribution pursuant to this Section 5.4.2 were determined by
pro rata allocation (even if such holders were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to in this paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities, expenses or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5.4.2(c), no
Securities Professional shall be required to contribute any
amount in excess of the amount by which the total price at which
the Registrable Shares of such holder were offered to the public
exceeds the amount of any damages which such holder has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(1)
of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
-14-
6. Stock Certificate Legend. A copy of this Agreement
shall be filed with the Secretary of the Company and kept with
the records of the Company. Each certificate representing Shares
now held or hereafter acquired by any Stockholder shall, for as
long as this Agreement is effective, bear legends substantially
in the following forms:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS OR
PURSUANT TO A WRITTEN OPINION OF COUNSEL FOR THE COMPANY
THAT REGISTRATION IS NOT REQUIRED.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR
OTHER DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
RESTRICTED BY THE TERMS OF THE STOCKHOLDERS AGREEMENT,
DATED AS OF APRIL 21, 1998 (THE "STOCKHOLDERS AGREEMENT"),
AMONG THE COMPANY AND THE STOCKHOLDERS NAMED THEREIN, A
COPY OF WHICH MAY BE INSPECTED AT THE COMPANY'S PRINCIPAL
OFFICE. THE COMPANY WILL NOT REGISTER THE TRANSFER OF SUCH
SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE
TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE
STOCKHOLDERS AGREEMENT.
7. Miscellaneous.
7.1. Notices. All notices or other communication
required or permitted hereunder shall be in writing and shall be
delivered personally, telecopied or sent by certified, registered
or express mail, postage prepaid. Any such notice shall be deemed
given when so delivered personally, telecopied or sent by
certified, registered or express mail or, if mailed, five days
after the date of deposit in the United States mail, as follows:
(a) if to the Company:
Diamond Brands Incorporated
1800 Cloquet Boulevard
Cloquet, Minnesota 55720
Attention: Chief Executive Officer
-15-
with a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attn: Helen R. Friedli, P.C.
Fax No.: (312) 984-3669
(b) if to the Rollover Stockholders:
Hunter Keith Industries, Inc.
5100 IDS Center
80 South Eighth Street
Attn: Andrew M. Hunter, III
Fax No.: (612) 338-7079
with a copy to:
Lindquist & Vennum P.L.L.P.
4200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Attn: Charles P. Moorse
Fax No.: (612) 371-3207
(c) if to SKC:
Seaver Kent & Company LLC
3000 Sand Hill Road
Building 1-230
Menlo Park, CA 94025
Attn: Alexander M. Seaver & Bradley R. Kent
Fax No.: (650) 233-9130
with a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
Attn: Helen R. Friedli, P.C.
Fax No.: (312) 984-3669
-16-
(d) if to any other Stockholder, at its address
as it appears on the record books of the
Company.
Any party may by notice given in accordance with this Section 8.1
designate another address or person for receipt of notices
hereunder.
7.2. Amendment and Waiver.
(a) No failure or delay on the part of any party
hereto in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies
provided for herein are cumulative and are not exclusive of
any remedies that may be available to the parties hereto at
law, in equity or otherwise.
(b) Any amendment, supplement or modification of
or to any provision of this Agreement, any waiver of any
provision of this Agreement, and any consent to any
departure by any party from the terms of any provision of
this Agreement, shall be effective (i) only if it is made
or given in writing and signed by SKC and the parties
holding a majority of the remaining Shares hereunder and
(ii) only in the specific instance and for the specific
purpose for which made or given; provided, however, that
any such amendment, supplement or modification to this
Agreement shall not be effective to withdraw, deny or
adversely affect the rights of any Stockholder who has not
consented in writing to such amendment, supplement or
modification.
7.3. Specific Performance. The parties hereto intend
that each of the parties have the right to seek damages or
specific performance in the event that any other party hereto
fails to perform such party's obligations hereunder. Therefore,
if any party shall institute any action or proceeding to enforce
the provisions hereof, any party against whom such action or
proceeding is brought hereby waives any claim or defense therein
that the plaintiff party has an adequate remedy at law.
7.4. Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
7.5. Severability. If any one or more of the provisions
contained herein, 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 hereof.
7.6. Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to such subject matter; provided however that the
Existing Stockholders Agreement shall remain in full force and
effect except as specifically provided otherwise in this
Agreement.
-17-
7.7. Term of Agreement. This Agreement shall become
effective upon the Closing of the transactions contemplated by
the Recapitalization Agreement among the Company, Seaver Kent -
TPG Partners, L.P., Seaver Kent I Parallel, L.P., and each of the
owners of equity interests or options to purchase equity
interests in the Company, dated March 3, 1998, and shall
terminate upon the date upon which the Commission declares
effective the Registration Statement relating to the Initial
Public Offering; provided, however, that the provisions of
Section 5 shall terminate on the second anniversary of the date
upon which the Commission declares effective the Registration
Statement relating to the Initial Public Offering and the
provisions of Section 5.4.2 shall not terminate.
7.8. Variations in Pronouns. All pronouns and any
variations thereof refer to the masculine, feminine or neuter, singular
or plural, as the context may require.
7.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
MINNESOTA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW THEREOF.
7.10. Further Assurances. Each of the parties shall,
and shall cause their respective Affiliates to, execute such
instruments and take such action as may be reasonably required or
desirable to carry out the provisions hereof and the transactions
contemplated hereby.
7.11. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and their
respective successors, heirs, legatees and legal representatives.
7.12. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, and
all of which taken together shall constitute one and the same instrument.
* * *
-18-
IN WITNESS WHEREOF, the undersigned have executed, or have
cause to be executed, this Agreement on the date first written
above.
DIAMOND BRANDS INCORPORATED
By:___________________________________
Name:____________________________
Title:___________________________
SEAVER KENT - TPG PARTNERS, L.P.
By:___________________________________
Name:____________________________
Title:___________________________
SEAVER KENT I PARALLEL, L.P.
By:__________________________________
Name:____________________________
Title:___________________________
______________________________________
Naresh K. Nakra
-19-
ROLLOVER STOCKHOLDERS:
Randall D. Barry
Stewart M. Barry
Walter R. Barry, Jr.
Walter R. Barry III
Andrew M. Hunter III
Ashley L. Hunter 1993 Trust, John L.
Morrison and Robert W. Horstman, Co-Trustees
Jocelyn W. Hunter 1997 Trust,
John L. Morrison and Robert W. Horstman,
Co-Trustees
Lacey M. Hunter 1995, Trust,
John L. Morrison and Robert W. Horstman,
Co-Trustees
Laura Elizabeth Keith
Michele R. Keith
Robert J. Keith, Jr.
Robert J. Keith, Jr. 1997 Irrevocable
Annuity Trust,
Robert J. Keith, Jr. and Robert W. Horstman,
Co-Trustees
Robert J. Keith III
Christopher A. Mathews
Alan S. McDowell
Jeffrey M. McDowell
Whitney W. McDowell
Dawn Ekstrom Michael
Edward A. Michael
John L. Morrison
John F. Young
Richard Campbell
Thomas Knuesel
John Beach
By:___________________________________
Andrew M. Hunter, III
as Shareholders Representative
-20-
OTHER INVESTORS
NEW YORK LIFE INSURANCE COMPANY
BY:___________________________________
Its:__________________________________
MELLON BANK AS TRUSTEE FOR THE GENERAL
MOTORS EMPLOYES DOMESTIC GROUP PENSION
TRUST
BY:___________________________________
Its:__________________________________
______________________________________
Richard Campbell
______________________________________
Christopher Mathews
______________________________________
John Young
______________________________________
Thomas Knuesel
______________________________________
John Beach
-21-
Exhibit A
---------
Rollover Stockholders:
Randall D. Barry
Stewart M. Barry
Walter R. Barry, Jr.
Walter R. Barry III
Andrew M. Hunter III
Ashley L. Hunter 1993 Trust, John L.
Morrison and Robert W. Horstman, Co-Trustees
Jocelyn W. Hunter 1997 Trust,
John L. Morrison and Robert W. Horstman, Co-Trustees
Lacey M. Hunter 1995, Trust,
John L. Morrison and Robert W. Horstman, Co-Trustees
Laura Elizabeth Keith
Michele R. Keith
Robert J. Keith, Jr.
Robert J. Keith, Jr. 1997 Irrevocable Annuity Trust,
Robert J. Keith, Jr. and Robert W. Horstman, Co-Trustees
Robert J. Keith III
Christopher A. Mathews
Alan S. McDowell
Jeffrey M. McDowell
Whitney W. McDowell
Dawn Ekstrom Michael
Edward A. Michael
John L. Morrison
John F. Young
Richard Campbell
Thomas Knuesel
John Beach
-22-
Exhibit B
---------
Other Investors
---------------
New York Life Insurance Company
Mellon Bank as Trustee for the
General Motors Employes Domestic
Group Pension Trust
Richard Campbell
Christopher Mathews
John Young
Thomas Knuesel
John Beach
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