Exhibit(d)(6)
- --------------------------------------------------------------------------------
STOCKHOLDERS' AGREEMENT
by and among
KBII HOLDINGS, INC.
KBII ACQUISITION COMPANY, L.P.
and
THE OTHER PERSONS LISTED
ON THE SIGNATURE PAGES HERETO
----------------------------
Effective
__________ ____, 2000
----------------------------
- --------------------------------------------------------------------------------
STOCKHOLDERS' AGREEMENT
-----------------------
THIS STOCKHOLDERS' AGREEMENT (this "Agreement"), effective __________ ____,
2000, among KBII Acquisition Company, L.P., a Delaware limited partnership (the
"Kohlberg Investor"), KBII Holdings, Inc., a Delaware corporation (the
"Company"), and the other holders of Stockholder Shares (as defined herein)
party hereto (the "Non-Kohlberg Stockholders" and, together with the Kohlberg
Investor, the "Stockholders").
NOW, THEREFORE, in consideration of $10.00, the mutual undertakings
contained herein and other valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by all parties hereto, the parties hereto agree
as follows:
Section 1. Definitions.
-----------
As used in this Agreement, the following terms have the following meanings:
"Affiliate" of any Person means any other Person directly or indirectly
---------
controlling or 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 possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Approved Sale" means the sale of the Company, in a single transaction or a
-------------
series of related transactions, to a third party that is not an Affiliate
of the Company or the Kohlberg Investor (a) pursuant to which such third
party proposes to acquire 100% of the outstanding Capital Stock or
substantially all of the assets of the Company (whether by merger,
consolidation, recapitalization, reorganization, purchase or otherwise),
(b) which is approved by the holders of a majority of the Capital Stock
then outstanding, and (c) pursuant to which all holders of Capital Stock
are subject to the same terms and obligations and receive the same form and
amount of consideration per share of Capital Stock or, if any holders are
given an option as to the form and amount of consideration to be received,
all holders are given the same option.
"Capital Stock" means any and all classes of stock issued by the Company.
-------------
"Kohlberg Stock" means Stockholder Shares held by the Kohlberg Investor and
--------------
its Permitted Transferees.
"Non-Kohlberg Stock" means Stockholder Shares held by a Stockholder other
------------------
than the Kohlberg Investor or its Permitted Transferees.
"Performance Options" means options to purchase shares of Capital Stock
-------------------
granted
pursuant to the Company's Stock Option Plan.
"Permitted Transferee" means (i) in the case of a Non-Kohlberg Stockholder,
--------------------
such Person's estate, spouse, child (natural or adopted), grandchild,
parent, or a trust for the benefit of any one or more of the foregoing;
provided, however, that if any of the foregoing is less than 21 years of
age at the time of such proposed transfer, then such transfer only may be
made to a trustee of a valid trust for the benefit of such person, which
trust shall not terminate prior to the beneficiary (or beneficiaries)
thereof attaining the age of 21; and (ii) in the case of a Kohlberg
Investors, any Affiliate of such Kohlberg Investor or any partner,
stockholder, employee, officer or director of such Kohlberg Investor or any
of its Affiliates; provided in each case hereunder, such transferee shall
become bound to this Agreement as provided in Section 13 hereof.
"Person" means any individual, partnership, joint venture, corporation,
------
trust, limited liability company, unincorporated organization or government
or department or agency thereof.
"Public Sale" means any sale pursuant to a registered public offering under
-----------
the Securities Act or any sale pursuant to Rule 144 under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended from time to
--------------
time.
"Stockholder" means any holder of Capital Stock of the Company.
-----------
"Stockholder Shares" means, without duplication, (i) all shares of Capital
------------------
Stock purchased or otherwise acquired by the Stockholders (including shares
issuable upon the exercise of Performance Options or the Warrants), and
(ii) any equity securities issued or issuable directly or indirectly with
respect to such Capital Stock by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular shares
constituting Stockholder Shares, such shares only will cease to be
Stockholder Shares when they have been sold pursuant to a Public Sale.
"Subsidiary" means, with respect to any Person, any corporation of which in
----------
excess of 50% of the outstanding capital stock having ordinary voting power
to elect a majority of the board of directors of such corporation
(irrespective of whether any other class or classes of capital stock of
such corporation may have such voting power by reason of the happening of
any contingency) is directly or indirectly owned by such Person and/or one
or more Subsidiaries of such Person.
"Vested Performance Options" means Performance Options that are presently
--------------------------
exercisable by the holder thereof on the date of determination.
"Warrant Holders" shall mean the holders of the Warrants and any permitted
---------------
transferee under the terms of the Warrant.
-2-
"Warrants" means any warrants or other rights to acquire Capital Stock.
--------
Section 2. Transfer of Capital Stock.
-------------------------
(a) Capital Stock or any interest therein may not be sold, transferred,
assigned, pledged or otherwise disposed of (a "Transfer") other than in
compliance with this Section 2. At least 45 days prior to any Transfer of
Capital Stock, the transferring Stockholder shall deliver a written notice (a
"Sale Notice") to the Company and the other Stockholders specifying the number
of shares of Capital Stock to be transferred (the "Offered Shares") and the
prospective transferees, and disclosing in reasonable detail the price, which
shall be payable solely in cash, and other terms and conditions of the proposed
Transfer.
(b) The Company may elect to purchase all or any portion of the Offered
Shares at the price and on the terms specified in the Sale Notice by delivering
written notice of such election (an "Election Notice") to the transferring
Stockholder within 30 days after delivery of the Sale Notice (the "Company
Election Period"). In the event the Company does not elect to purchase all of
the Offered Shares, the other Stockholders may elect to purchase all of the
remaining Offered Shares at the price and on the terms specified in the Sale
Notice by delivering an Election Notice to the transferring Stockholder within
15 days after the expiration of the Company Election Period (the "Stockholder
Election Period"). If more than one Stockholder elects to purchase hereunder,
each electing Stockholder shall have the right to purchase a percentage of the
Offered Shares determined by dividing the number of shares of Capital Stock
owned by such Stockholder by the number of shares of Capital Stock owned by all
of the electing Stockholders. Any purchase of Offered Shares pursuant to this
Section 2 will be consummated as soon as practicable (but in any event within 15
days) after the expiration of the Company Election Period or the Stockholder
Election Period, as the case may be.
(c) If the Company and the Stockholders shall not have elected to purchase
all of the Offered Shares or shall have so elected but have failed to purchase
such Offered Shares within the time required by Section 2(b), the transferring
Stockholder may, within 60 days after the later of the expiration of the
Stockholder Election Period or such default, transfer such Offered Shares to the
prospective transferees identified in the Sale Notice on terms no more favorable
to such transferees than specified in the Sale Notice provided that such
transferees comply with the terms of Section 15 hereof. Any Offered Shares not
transferred within such 60-day period will be subject to the provisions of this
Section 2 upon any subsequent attempt to transfer such Offered Shares.
(d) The provisions of Section 2(b) and (c) shall not apply to Transfers of
Capital Stock (i) to a Permitted Transferee of the transferring Stockholder,
(ii) pursuant to Sections 3, 4, 5 or 6 of this Agreement, or (iii) to the
Company. Any attempt to transfer any Capital Stock in violation of this Section
2 shall be void ab initio, and the Company shall not give any effect to such
attempted transfer in the stock records of the Company.
-3-
Section 3. Sale of the Company.
-------------------
In the event of an Approved Sale of the Company, the Stockholders will
consent to and raise no objections (including seeking appraisal rights or
asserting dissenter's or similar rights) with respect to the Approved Sale, and
if the Approved Sale is structured as a sale of stock, the Stockholders will
agree to sell all of their Capital Stock and rights to acquire Capital Stock on
the terms and conditions of the Approved Sale. The Stockholders will use their
best efforts to cooperate in the Approved Sale and will take all necessary and
desirable actions in connection with the consummation of the Approved Sale as
are reasonably requested by the Company.
Section 4. Participation Rights.
--------------------
(a) Subject to Section 4(b), not less than 20 days prior to any proposed
transfer of Kohlberg Stock, the Kohlberg Investor shall deliver to the Non-
Kohlberg Stockholders and the Warrant Holders a written notice (the "Sale
Notice") specifying in reasonable detail the identity of the proposed
transferees and the terms and conditions of the proposed transfer. Any Non-
Kohlberg Stockholders may elect to participate in the proposed transfer by
delivering to the Kohlberg Investor a written notice of such election within the
10-day period following delivery of the Sale Notice. The Kohlberg Investor and
each such participating Non-Kohlberg Stockholder will be entitled to sell in
such proposed transfer, at the same price and on the same terms, a number of
shares of Capital Stock equal to the product of (i) the quotient determined by
dividing the percentage of the Company's Capital Stock then held by the Kohlberg
Investor or such participating Non-Kohlberg Stockholder, by the aggregate
percentage of the Capital Stock then held by the Kohlberg Investor and all
participating Non-Kohlberg Stockholders, multiplied by (ii) the number of shares
of Capital Stock to be sold in such proposed transfer. For purposes of this
Section 4, each participating Non-Kohlberg Stockholder shall be deemed to hold
all shares of Capital Stock acquirable pursuant to the exercise of Vested
Performance Options then held by such Non-Kohlberg Stockholder. If any Warrant
Holder elects to participate or a Management Member holding Vested Performance
Options elects to participate with respect to shares of Capital Stock
represented by such Warrants or his Vested Performance Options, such Warrant
Holder or Management Holder shall first exercise its or his rights under the
Warrant or the Performance Option to acquire such number of shares as the
Warrant Holder or Management Member proposes to sell in such transfer. The
participating Non-Kohlberg Stockholders shall pay a pro rata portion of the
transaction expenses associated with such transfer.
(b) This Section 4 shall not apply to transfers by the Kohlberg Investor
(i) of less than an aggregate of 5% (in all such transfers measured on a
cumulative basis) of the outstanding Capital Stock, (ii) to Permitted
Transferees of such Kohlberg Investor or (iii) pursuant to Sections 3 or 6.
Section 5. Registration Rights.
-------------------
(a) At any time after the earlier of (x) the fifth anniversary of the
effective date of this Agreement and (y) 180 days after the consummation of the
Company's initial public offering of Capital Stock under the Securities Act, the
holders of a majority of the then-outstanding
-4-
Kohlberg Stock shall have the right to require the Company to effect up to two
registrations of their Capital Stock under the Securities Act (any of the
foregoing, a "Demand Registration"). Upon receipt of any request for a Demand
Registration, the Company will give prompt written notice of such request to
each Stockholder, and will include in such Demand Registration all Stockholder
Shares with respect to which the Company has received written requests for
inclusion within 30 days after delivery of the Company's notice. If other
securities are included in any Demand Registration that is not an underwritten
offering, all Stockholder Shares included in such offering shall be sold (pro
rata among the holders thereof on the basis of the amounts of Stockholder Shares
requested to be included by such holders) prior to the sale of any of such other
securities. If other securities are included in a Demand Registration which is
an underwritten offering and the managing underwriter for such offering advises
the Company that in its opinion the total amount of securities proposed to be
included is sufficiently large so as to have a material adverse effect on the
distribution of the securities in such offering, the Company will include in
such registration all Stockholder Shares requested to be included therein prior
to the inclusion of any securities which are not Stockholder Shares. If the
Stockholder Shares requested to be included in such registration exceeds the
amount of securities which in the opinion of such underwriter can be sold
without having such a material adverse effect on the distribution, such
Stockholder Shares shall be included pro rata among the holders thereof on the
basis of the amount of Stockholder Shares requested to be included in such
registration by such holders. The Company will have the right to select the
investment banker(s) and manager(s) to administer any Demand Registration which
is an underwritten offering, subject to the approval of the holders of a
majority of Kohlberg Stock to be included in such Demand Registration, which
will not be unreasonably withheld.
(b) In the event that the Company proposes to register any Capital Stock
under the Securities Act in connection with a public offering on any form (other
than Form S-4 or Form S-8) that would permit the inclusion of Stockholder
Shares, the Company will give each of the Stockholders and the Warrant Holders
written notice thereof not less than 30 days prior to the effective date of such
registration, and will include in such registration all Stockholder Shares,
which are at least 10 days prior to the election date of such registration,
requested in writing to be included therein (including shares covered by
presently exercisable options to the extent that the Company receives
appropriate assurances that such options will be exercised upon effectiveness of
such registration), subject to the limitations set forth in this Section 6. If
in connection with such proposed registration (other than a Demand Registration,
which shall be governed by subsection (a) of this Section 5) the managing
underwriter for such offering advises the Company that the total amount of
Stockholder Shares requested to be included therein is sufficiently large so as
to have a material adverse effect on the distribution of the securities in such
offering, any shares to be sold by the Company in such offering shall have
priority over any Stockholder Shares, and the number of Stockholder Shares to be
included by a Stockholder in such registration shall be reduced pro rata on the
basis of the numbers of shares requested to be included by such Stockholder and
all other holders (other than the Company) exercising similar registration
rights.
-5-
(c) The Company shall bear the costs of each registration in which
Stockholders participate pursuant to this Section 5, including the reasonable
fees and expenses of one counsel for the selling Stockholders but excluding any
underwriting discounts or commissions on the sale of Stockholder Shares or the
fees and expenses of any additional counsel retained by the Stockholders. As a
condition to the inclusion of Stockholder Shares in any registration, the
Stockholder and the Company shall execute an underwriting agreement or similar
agreement in a form reasonably acceptable to the Company, the Stockholders and
the underwriters), if any, for such offering containing customary
indemnification and holdback provisions. Notwithstanding the foregoing, no
Stockholder shall be required to incur indemnification obligations in an amount
in excess of the net proceeds received by such Stockholder pursuant to such
registration or which relate to information not supplied by such Stockholder for
inclusion in the registration statement.
(d) Notwithstanding any other provision of this Section 5, (i) in the
event the Kohlberg Investor does not sell shares in a registration that relates
to the Company's initial public offering, the Non-Kohlberg Holders (as
authorized under this Agreement) shall be permitted to include Stockholder
Shares only to the extent permitted by the managing underwriter, (ii) the
Company shall not be obligated to include in any registration pursuant to this
Section 5 any Stockholder Shares (other than Kohlberg Stock) that are then
eligible for transfer pursuant to Rule 144(k) under the Securities Act (or which
have otherwise been registered under the Securities Act), and (iii) no more than
one Demand Registration may be required in any six-month period. In addition,
the Company may delay any Demand Registration for up to 180 days if, in the good
faith judgment of the Company's Board of Directors, such Demand Registration
would interfere in any material respect with any material pending or proposed
corporate transaction; provided, however, that this right shall not be exercised
more than once in any twelve-month period.
(e) Each Stockholder agrees that it will not effect any public sale or
distribution of any equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 180 days after the effectiveness of any registration
statement with respect to a public offering of Capital Stock (other than on Form
S-8) by or on behalf of the Company. The holdback restriction in this Section
5(e) shall not apply to a registered offering effected more than two years after
the initial public offering of the Company's securities except to the extent
requested by the managing underwriter.
(f) If any Warrant Holder elects to participate or a Management Holder
holding Vested Performance Options elects to participate with respect to shares
of Capital Stock represented by his Vested Performance Options, such Warrant
Holder or Management Holder shall first exercise its or his rights under the
Warrant or the Performance Option to include such stock in the registration and,
in no way, shall this provision be construed to allow a Warrant Holder to
register a Warrant or to allow a Stockholder to register a Performance Option.
-6-
Section 6. Preemptive Rights.
-----------------
(a) Right to Purchase Shares. The Company shall not issue or sell (in
------------------------
either case, an "Issuance") shares of Capital Stock ("Shares") (other than (i)
pursuant to the Company's Stock Option Plan, (ii) Issuances of Shares to the
Kohlberg Investors or any of their Affiliates comprising not more than 5% of the
total outstanding Shares including such Shares to be Issued, (iii) Shares issued
upon exercise of the Warrants, (iv) Shares or other equity interests or
securities convertible into Shares or equity interests Issued or sold in
connection with acquisitions or business combinations with third parties that
are not Affiliates of Stockholders, (v) Issuances of Shares or securities
convertible into or giving the right to purchase Shares in connection with
financing transactions for indebtedness with third parties that are not
Affiliates of any Stockholders), unless, within thirty (30) business days of
such Issuance, each Stockholder shall have been given the opportunity to
purchase (on the same terms as such Shares are being or are proposed to be
Issued, as the case may be) an amount of Shares sufficient, if totally
purchased, to allow such Stockholder to maintain its same equity interest (on a
percentage basis) in the Company as it has or had, as the case may be,
immediately prior to the subject Issuance after giving effect to such Issuance
(the "Basic Amount"). Each Stockholder hereby acknowledges that the rights set
forth in this Section 6 are the exclusive rights of such Stockholder to anti-
dilution, preemptive or like rights, regardless of whether such other rights are
granted under any other instrument or by law and each such Stockholder hereby
expressly renounces and waives such other rights.
(b) Notice of Preemptive Rights. Within thirty (30) business days of an
---------------------------
Issuance by the Company of any Shares to which subparagraph (a) above would be
applicable, the Company shall give written notice thereof (the "Notice of
Preemptive Rights") to each Stockholder and Warrant Holder which shall specify
the number of Shares Issued or proposed to be Issued, as the case may be, the
price and other terms of their Issuance, the Basic Amount which each Stockholder
is entitled to purchase, and the period during which such Stockholder may elect
to purchase such Shares, which period shall extend for at least thirty (30)
business days following the delivery of such notice.
(c) Exercise of Preemptive Rights. Each Stockholder that desires to
-----------------------------
purchase Shares shall notify the Company in writing (the "Notice of Acceptance")
within the specified period of the portion of the Basic Amount it wishes to
purchase. To the extent that a Stockholder does not purchase all of its Basic
Amount (an "Unused Portion"), the Kohlberg Investor shall have the right but not
the obligation to, within thirty (30) days of expiration of the notice period,
purchase the Unused Portion on the same terms as was offered to the Stockholder.
(d) Options or Warrants. If any Warrant Holder elects to participate or a
-------------------
Stockholder holding Vesting Performance Options elects to participate with
respect to shares of Capital Stock represented by his Vested Performance
Options, such Warrant Holder or Stockholder shall first exercise its or his
rights under the Warrant or the Performance Option to include such stock in the
calculation of its or his Basic Amount.
Section 7. Legend.
------
-7-
(a) Each certificate evidencing Stockholder Shares and each certificate
issued in exchange for or upon the transfer of any Stockholder Shares (if such
Shares remain Stockholder Shares upon such transfer) will be stamped or
otherwise imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
ON [DATE OF ISSUANCE], HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. AS AMENDED (THE "ACT"). OR UNDER ANY STATE SECURITIES
LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER
AGREEMENTS SET FORTH IN A STOCKHOLDERS AGREEMENT EFFECTIVE __________
____, 2000, AMONG THE COMPANY, KBII ACQUISITION COMPANY, L.P. AND THE
STOCKHOLDERS SIGNATORY THERETO, A COPY OF WHICH MAY BE OBTAINED
WITHOUT CHARGE BY THE HOLDER HEREOF AT THE COMPANY'S PRINCIPAL PLACE
OF BUSINESS."
The Company will imprint such legends on certificates evidencing Stockholder
Shares outstanding prior to the date hereof. The legend set forth in the second
paragraph above shall be removed from the certificates evidencing any Shares
which cease to be Stockholder Shares.
(b) No holder of Stockholder Shares may sell, transfer or dispose of any
such securities (except pursuant to an effective registration statement under
the Securities Act) without first delivering to the Company an opinion of
counsel reasonably acceptable in form and substance to the Company that
registration under the Securities Act is not required in connection with such
transfer, and such further evidence as the Company reasonably may require to
confirm to the Company's satisfaction that such sale, transfer or disposition is
in compliance with the terms of this Agreement.
Section 8. Representations and Warranties.
------------------------------
Each of the Stockholders hereby represents and warrants severally and not
jointly (a) that it is not a party to any contract or agreement, including any
voting trust or other voting arrangement, whereby any of the Capital Stock or
any interest therein held by it on the date hereof is to be offered, sold,
assigned, pledged, hypothecated or otherwise transferred and (b) that it has no
present intention of transferring any shares of Capital Stock or any interest
therein to any Person other than Permitted Transferees.
Section 9. Corporate Opportunities.
-----------------------
-8-
Each Non-Kohlberg Stockholder acknowledges and agrees that all business
opportunities involving any aspect of the Business identified by any of them
shall be timely presented to the Board of Directors in writing (the "Notice").
In the event the Board does not notify the Non-Kohlberg Stockholders in writing
within thirty (30) business days of the Notice that it will pursue the
opportunity, such Non-Kohlberg Stockholder shall be entitled to pursue any such
opportunity in their individual or collective capacities or in participation
with others provided that such opportunity shall not conflict with or cause a
breach of any duty or obligation owed by such Non-Kohlberg Stockholder under
this Agreement or otherwise to the Company or any duty or obligation owed by
such Non-Kohlberg Stockholder in his capacity as a Director, officer or employee
of the Company. For purposes hereof, "Business" shall mean the operations of
the Company as conducted as of the effective date hereof, which includes without
limitation directly or indirectly manufacturing and providing electronic
monitoring equipment and the provision of related services, and the provision of
community correctional services, to the criminal justice market worldwide.
Section 10. Election of Directors.
---------------------
All Stockholders hereby irrevocably give their proxy to the Kohlberg
Investor to vote for, remove and elect the Company's Board of Directors;
provided that, Dave Hunter shall initially be elected to the Company's Board of
Directors.
Section 11. Amendment and Waiver.
--------------------
Except as otherwise provided herein, no modification, amendment or waiver
of any provision of this Agreement will be effective against the Company or the
Stockholders unless such modification, amendment or waiver is approved in
writing by the Company and the holders of at least a majority of the voting
Capital Stock; provided that any such modification, amendment or waiver that by
its terms materially and adversely affects the holders of Kohlberg Stock or the
Non-Kohlberg Stock and that does not by its terms apply to all Stockholders
generally shall require the approval of the holders of a majority of each of the
Kohlberg Stock and the Non-Kohlberg Stock then outstanding.
Section 12. Severability.
------------
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
Section 13. Entire Agreement.
----------------
-9-
This Agreement and the other documents expressly referred to herein embody
the complete agreement and understanding among the parties hereto with respect
to the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
Section 14. Successors and Assigns.
----------------------
(a) This Agreement will bind and inure to the benefit of and be
enforceable by the Company and its successors and assigns and by the
Stockholders, any subsequent holders of Stockholder Shares and the respective
heirs, administrators, executors, representatives, successors and permitted
assigns of each of them, so long as they hold Stockholder Shares.
(b) Each Stockholder agrees that it will not transfer any Stockholder
Shares to any Person unless, as of the date such Person becomes a holder of
Stockholder Shares, such Person agrees to be bound by all of the terms and
provisions hereof. The Company may decline to give effect to any such Transfer
until it receives satisfactory evidence of such agreement and the effectiveness,
and any Transfer in violation of the provisions of this Agreement shall be void.
Section 15. Counterparts.
------------
This Agreement may be executed in separate counterparts, each of which will
be an original and all of which taken together will constitute one and the same
agreement.
Section 16. Remedies.
--------
The Stockholders will be entitled to enforce their rights under this
Agreement specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in their favor. The parties hereto agree and
acknowledge that money damages will not be an adequate remedy for any breach of
the provisions of this Agreement and that any Stockholder may in its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief in order to enforce or prevent any
violation of the provisions of this Agreement.
Section 17. Notices.
-------
Any notice or other communication required or permitted hereunder shall be
in writing and shall be delivered personally, sent by facsimile transmission or
sent by certified, registered or express mail, postage prepaid. Any such notice
shall be deemed given when so delivered personally or sent by facsimile
transmission or, if mailed, five days after the date of deposit in the United
States mails, as follows:
(a) if to the Company or a Kohlberg Investor, to:
c/o Kohlberg & Company
111 Radio Circle
-10-
Mount Kisco, New York 10549
Attention: Christopher Lacovara
Telephone: (914) 241-7430
Facsimile: (914) 241-7476
with a copy to:
Hunton & Williams
Bank of America Plaza
Suite 4100
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Attention: Gregory K. Gale
Telephone: (404) 888-4152
Facsimile: (404) 888-4190
(b) if to any Non-Kohlberg Stockholder, to the name and address set forth
on the books and records of the Company; or to such address as a party may
instruct by notice hereunder (which address will be provided promptly by the
Company upon the request of any Stockholder).
Section 18. GOVERNING LAW.
-------------
ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAW (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF DELAWARE.
Section 19. Descriptive Headings.
--------------------
The descriptive headings of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
Section 20. Termination.
-----------
Sections 2 through 5 and Section 7 of this Agreement will terminate
automatically and be of no further force and effect upon the earlier of (i)
consummation of the Company's initial public offering of Capital Stock under the
Securities Act, and (ii) consummation of an Approved Sale of the Company. In
any event, this Agreement shall terminate in its entirety as of the tenth
anniversary of the date of this Agreement.
[Signatures on Following Page]
-11-
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of the date set forth above.
COMPANY:
KBII HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
STOCKHOLDERS:
KBII Acquisition Company, L.P.
By: KBII Management, LLC,
its general partner
By:
--------------------------------
James A. Kohlberg
Managing Member
-----------------------------------
Name:
------------------------------
-----------------------------------
Name:
------------------------------
-----------------------------------
Name:
------------------------------
-----------------------------------
Name:
------------------------------
-12-