EXHIBIT 10.2
MANAGEMENT SHAREHOLDERS' AGREEMENT
DATED AS OF
SEPTEMBER 5, 2003
BY AND AMONG
VIGILANT INTERNATIONAL, LTD.
AND
THE INVESTORS LISTED
ON THE SIGNATURE PAGES HERETO
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS......................................................... 3
ARTICLE II RESTRICTIONS ON TRANSFERS OF SHARES................................ 7
2.1 General Limitations on Transfers................................. 7
2.2 Compliance with Securities Laws.................................. 9
2.3 Permitted Transfers.............................................. 9
2.4 After Acquired Equity Securities................................. 10
2.5 Tag-Along Rights................................................. 10
2.6 Drag-Along Right................................................. 12
2.7 Additional Provisions Relating to Restrictions on Transfers...... 13
ARTICLE III REGISTRATION RIGHTS............................................... 14
3.1 Piggyback and Demand Registrations............................... 14
3.2 Registration Procedures.......................................... 17
3.3 Indemnification.................................................. 19
3.4 Holdback Agreement............................................... 23
3.5 Deferral......................................................... 23
ARTICLE IV LIMITED CALL AND PUT RIGHTS........................................ 24
4.1 Company Call Rights.............................................. 24
4.2 Limited Put with Respect to Option-A Tranche..................... 25
ARTICLE V MISCELLANEOUS....................................................... 27
5.1 Effectiveness; Term.............................................. 27
5.2 No Voting or Conflicting Agreements.............................. 28
5.3 Approval of Share Incentive Plan by Management Investors......... 28
5.4 Specific Performance............................................. 28
5.5 Notices.......................................................... 28
5.6 Successors and Assigns........................................... 28
5.7 Recapitalizations and Exchanges Affecting Shares................. 28
5.8 Governing Law.................................................... 29
5.9 Descriptive Headings, Etc........................................ 29
5.10 Amendment........................................................ 29
5.11 Additional Issuances; Joinder.................................... 29
5.12 Severability..................................................... 29
5.13 Further Assurances............................................... 30
5.14 Complete Agreement; Counterparts................................. 30
5.15 Certain Transactions............................................. 30
5.16 No Third-Party Beneficiaries..................................... 30
MANAGEMENT SHAREHOLDERS' AGREEMENT
MANAGEMENT SHAREHOLDERS' AGREEMENT, dated as of September 5,
2003 (this "AGREEMENT"), by and among Vigilant International, Ltd., a Cayman
Islands exempted company formed with limited liability (the "COMPANY"), U.N.
Holdings (Cayman), Ltd. ("U.N. HOLDINGS (CAYMAN), LTD") and each of the
employees, officers, directors, executives, consultants and other Persons having
a similar business relationship with the Company or its Affiliates (as defined
below) owning or holding Equity Securities (as defined below) who are all listed
on Schedule I hereto (referred to individually as a "MANAGEMENT INVESTOR" or
collectively as the "MANAGEMENT INVESTORS").
Capitalized terms used but not previously or otherwise defined
herein shall have the meanings ascribed to them in Article I of this Agreement.
RECITALS
WHEREAS, the Company, as of the date hereof, currently has
authorized Class A Shares for issuance ("SHARES");
WHEREAS, the Company and certain direct and indirect
subsidiaries of the Company have entered into or will enter into employment
agreements (the "EMPLOYMENT AGREEMENTS") and/or option agreements ("OPTION
AGREEMENTS") and/or restricted share purchase agreements ("RESTRICTED SHARE
PURCHASE AGREEMENTS") and related agreements with certain Management Investors,
that provide for, among other things, the issuance and/or purchase of Shares and
the grant of Options (as defined below) to such Management Investors;
WHEREAS, the Company has reserved Shares for issuance pursuant
to the Company's 2003 Share Incentive Plan (the "SHARE INCENTIVE PLAN");
WHEREAS, the parties hereto desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of the Shares and other
Equity Securities, if any, which the parties hereto own or may hereafter
acquire, and to provide for certain rights and obligations in respect thereof as
hereinafter provided;
NOW, THEREFORE, in consideration of the premises and of the
terms and conditions contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
"AFFECTED HOLDER" shall have the meaning ascribed to it in
Section 5.10 hereof.
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"AFFILIATE" of a Person shall mean a Person, directly or
indirectly, controlled by, controlling or under common control with such Person.
"AGREEMENT" shall have the meaning ascribed to it in the
Preamble hereto.
"APPLICABLE FEDERAL RATE" shall have the meaning ascribed to
it in Section 4.1 hereof.
"BOOK VALUE BASE" shall equal a per share book value amount
equal to the product of (A) the per share book value of the Company as reflected
in the most recent quarterly financial statements of the Company as of the "Call
Date" defined in Section 4.1 hereof, and (B)0.84.
"CLAIMS" shall mean losses, claims, damages or liabilities,
joint or several, actions or proceedings (whether commenced or threatened).
"COMPANY" shall have the meaning ascribed to it in the
Preamble hereto.
"COMPETITOR" shall have the meaning ascribed to it in Section
2.1.4.
"COST PRICE" shall mean the amount per Share paid for each
Share. In the case of Shares issued upon the exercise of an Option, the Cost
Price shall equal the exercise price of such Option. The Cost Price shall be
adjusted ratably as determined by the Board of Directors of the Company, in its
sole discretion, in the event of share splits, share dividends, share
combinations or similar events.
"DEMAND REGISTRATION" shall have the meaning ascribed to it in
Section 3.1.2 hereof.
"DRAG-ALONG RIGHT" shall have the meaning ascribed to it in
Section 2.6.1 hereof.
"DRAG-ALONG SELLER" shall have the meaning ascribed to it in
Section 2.6.2 hereof.
"EFFECTIVE DATE" shall have she meaning ascribed to it in
Section 5.1.1 hereof.
"EMPLOYMENT AGREEMENTS" shall have the meaning ascribed to it
in the Recitals hereof.
"EQUITY SECURITIES" shall mean (a) all Shares and (b) all
Options, other options, warrants and other debt or equity securities,
convertible, exchangeable into or redeemable for any class of Shares or other
equity securities of the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any successor federal statute thereto, and the rules and
regulations of the SEC promulgated thereunder, all as the same shall be in
effect from time to time.
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"FAIR MARKET VALUE" shall mean such amount as determined by
the Board of Directors of the Company in light of all of the facts and
circumstances, including comparable recent bona fide sales of applicable or
similar securities, and after taking into account, in such manner as the Board
in its discretion deems appropriate, the Book Value Base.
"FPC" means Fox Paine & Company, LLC, its subsidiaries and
related entities (including without limitation Fox Paine Capital, LLC, Fox Paine
Capital Fund, L.P., Fox Paine Capital Fund II GP, LLC, Fox Paine Capital Fund II
L.P., Fox Paine Capital Fund II International, L.P., Fox Paine Capital Fund II
Co-Investors International, L.P., U.N. Holdings (Cayman), Ltd. and all persons
and entities that are partners or shareholders or members in any such related
entities) and all partners, members, directors, employees, shareholders and
agents of any of the foregoing.
"FPC SHAREHOLDER" shall mean U.N. Holdings (Cayman), Ltd.
"INITIATOR" shall have the meaning ascribed to it in Section
2.5.1 hereof.
"INITIATING PARTY" shall have the meaning ascribed to it in
Section 3.1.2 hereof.
"IPO" shall mean an underwritten initial public offering or
public offerings (on a cumulative basis) of any class of Shares pursuant to a
registration statement or registration statements under the Securities Act with
aggregate gross proceeds to the Company of at least $60 million.
"MANAGEMENT INVESTORS" shall have the meaning ascribed to it
in the Preamble hereto.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASDAQ" shall mean The Nasdaq Stock Market, Inc.
"OFFER SHARES" shall have the meaning ascribed to it in
Section 2.5.1 hereof.
"OPTION-A TRANCHE" shall mean all Options granted to any
Management Investor that are designated as such in the respective option
agreement.
"OPTIONS" shall mean options to purchase Shares from the
Company, whether granted pursuant to the Shares Incentive Plan or otherwise.
"PERMITTED TRANSFEREE" shall have the meaning ascribed to it
in Sections 2.3.3 and 2.3.4 hereof.
"PERSON" shall mean an individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization,
government (or any department or agency thereof) or other entity.
"PIGGYBACK NOTICE" shall have the meaning ascribed to it in
Section 3.1.1 hereof.
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"PIGGYBACK REGISTRATION" shall have the meaning ascribed to it
in Section 3.1.1 hereof.
"PROPOSED TRANSFEREE" means a Person or group (as defined in
Section 13(d)(3) of the Exchange Act) other than any Management Investors or
their Affiliates to whom Shares are proposed to be Transferred.
"REGISTRABLE SECURITIES" shall mean Shares; provided, however,
as to any particular Registrable Securities, once issued, such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) such securities shall have been sold or
acquired pursuant to Rule 144 (or any successor provision under the Securities
Act) under the Securities Act, (iii) such securities shall have been otherwise
transferred and new certificates for such securities not bearing a legend
restricting further transfer shall have been delivered by the Company, or (iv)
such securities shall have ceased to be outstanding (and, in the case of Shares
underlying Options granted under the Share Incentive Plan or underlying Options
or warrants granted otherwise, such Shares shall have ceased to be outstanding
after issuance pursuant to the exercise of such Options or warrants).
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance with Article III, including, without
limitation, (i) all SEC and shares exchange or the NASD registration and filing
fees, (ii) all fees and expenses of complying with securities or "blue sky" laws
(including reasonable fees and disbursements of counsel for the underwriters in
connection with "blue sky" qualifications of the Registrable Securities), (iii)
all printing, messenger and delivery expenses, (iv) the fees and disbursements
of counsel for the Company and of the Company's independent public accountants,
including the expenses of any special audits and/or "cold comfort" letters
required by or incident to such performance and compliance, (v) the reasonable
fees and disbursements of one counsel retained by the Management Investors such
counsel to be chosen by the Management Investors by vote of a plurality of the
Registrable Securities of such Management Investors being registered) as a group
in connection with each such registration, (vi) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained in connection with
the requested registration, including any fee payable to a qualified independent
underwriter within the meaning of the rules of the NASD, (vii) internal expenses
of the Company (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties) and (viii)
securities acts liability insurance (if the Company elects to obtain such
insurance) but, in all cases, excluding underwriting discounts and commissions
and transfer taxes, if any.
"RESTRICTED SHARES" shall mean as Award of Class A Shares
granted under the Share Incentive Plan.
"RULE 144" shall mean Rule 144 under the Securities Act.
"SALE NOTICE" shall have the meaning ascribed to it in Section
2.5.1.
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"SEC" shall mean the Securities and Exchange Commission.
"SECTION 3.1 SALE NUMBER" shall have the meaning ascribed to
it in Section 3.1.4 hereof.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any successor federal statute thereto, and the rules and regulations
of the SEC promulgated thereunder, all as the same shall be in effect from time
to time.
"SHARE INCENTIVE PLAN" shall have the meaning ascribed to it
in the Recitals hereof.
"SUBSIDIARY DIVIDEND" shall have the meaning ascribed to it in
Section 4.1(a) hereof.
"TAG-ALONG RIGHT" shall have the meaning ascribed to it in
Section 2.5.3(a) hereof.
"TAG-ALONG SELLER" shall have the meaning ascribed to it in
Section 2.5.3(b) hereof.
"TAG-ALONG SHARES" shall have the meaning ascribed to it in
Section 2.5.2 hereof.
"TERMINAL PUT PERSON" shall have the meaning ascribed to it in
Section 4.2 hereof.
"TRANSFER" shall mean to sell, assign, pledge (other than
pledges to the Company and its Affiliates) or encumber or otherwise transfer,
directly or indirectly, whether or not for consideration.
"TRANSFEREE" shall mean any Person to whom a Transfer is made,
regardless of the method of Transfer.
"TRANSFEROR" shall mean any Person by whom a Transfer is made,
regardless of the method of Transfer.
"UNMATURED SHARES" shall have the meaning ascribed to it in
Section 4.1 hereof.
"VIOLATION" shall have the meaning ascribed to it in Section
3.3(a) hereof.
ARTICLE II
RESTRICTIONS ON TRANSFERS OF SHARES
2.1 General Limitations on Transfers.
2.1.1 Transfers Generally. No Management Investor shall
Transfer any Shares (whether owned as of the date hereof or hereafter acquired)
unless such Transfer is made in
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accordance with the provisions of this Agreement and any Transfer by any
Management Investors of any Shares owned as of the date hereof or hereafter
acquired in violation of such provisions shall be null and void; provided
further that any Transfer shall also be in accordance with the Company's
Articles of Association.
2.1.2 Recordation. The Company shall not record upon its
books any attempted Transfer of Shares held or owned by any of the Management
Investors to any other Person, except Transfers in accordance with this
Agreement, and any such attempted Transfer shall be null and void ab initio.
2.1.3 Obligations of Transferees. No Transfer of Shares by
a Management Investor which would be otherwise permitted pursuant to this
Agreement shall be effective unless (a) the Transferee (including a Permitted
Transferee pursuant to Section 2.3) shall have executed an appropriate document
(a "JOINDER AGREEMENT") in form and substance reasonably satisfactory to the
Company confirming that (i) the Transferee takes such Shares subject to all the
terms and conditions of this Agreement to the same extent as its Transferor was
bound by and entitled to the benefits of such provisions and (ii) the Shares
shall bear legends, substantially in the forms required by Section 2.7, and (b)
such document shall have been delivered to and approved (as described above) by
the Company prior to such Transferee's acquisition of Class A Shares, such
approval not to be unreasonably withheld or delayed. Notwithstanding the
foregoing, the provisions of this Section 2.1.3 shall not apply to a Transfer
validly made pursuant to a Demand Registration or Piggyback Registration and, at
the discretion of the Board of Directors, may not apply to Transfers made
pursuant to a Tag-Along Right or Drag Along Right.
2.1.4 Prohibited Transfers; Transfers to Competitors.
Notwithstanding anything to the contrary in this Agreement, without the consent
of the Board of Directors of the Company, no Management Investor shall, at any
time, directly or indirectly, Transfer any Shares which (a) would result in the
assets of the Company constituting "Plan Assets" as such term is defined in the
Department of Labor regulations promulgated under the Employee Retirement Income
Security Act of 1974, as amended, (b) would cause the Company to be controlled
by or be under common control with an "investment company" for purposes of the
Investment Company Act of 1940, as amended, (c) would require any securities of
the Company to be registered under the Exchange Act or (d) is made to any Person
who is a Competitor (as defined below) of the Company or any of its subsidiaries
or to any Affiliate of such a Competitor (other than Transfers to the Company
and its Affiliates). Notwithstanding clause (d), a Transfer to a Competitor may
be permitted under Section 2.1.4 (d) solely if such Transfer (i) is made in
connection with the exercise of a Tag-Along Right pursuant to Section 2.5 or in
connection with the exercise of a Drag-Along Right pursuant to Section 2.6, in
which event such sale may be effected only in accordance with Section 2.5 or
Section 2.6, as applicable, or (ii) is made in accordance with all other terms
of this Agreement and is made pursuant to a widely distributed, underwritten
public offering registered under the Securities Act (or an underwritten offering
pursuant to the exercise of such other Management Investors' piggyback
registration rights pursuant to Section 3.1.1) or pursuant to a sale effected
through an open market, nondirected broker's transaction pursuant to Rule 144 in
which the seller does not know that the buyer is a Competitor. "COMPETITOR"
shall mean any Person that competes in a significant way with a substantial
business of the Company or a Person that has a substantial investment in any
such competing entity; provided that an institutional investor or its Affiliates
that hold nonvoting debt or less than 5% of the publicly
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traded equity securities of any such Competitor as a passive portfolio
investment shall not be a Competitor. For purposes of this provision, the good
faith determination of a majority of the entire Board of Directors of the
Company that a proposed Transferee is a Competitor, made within 30 days of
written notice to the Board of Directors of the Company of the proposed
Transfer, shall in all respects be conclusive.
2.2 Compliance with Securities Laws. Notwithstanding any
other provision of this Agreement, no Management Investor shall Transfer any
Shares unless the Transfer is made in accordance with the terms of this
Agreement and (a) the Transfer is pursuant to an effective registration
statement under the Securities Act and in compliance with any other applicable
federal securities laws and state securities or "blue sky" laws or (b) such
Management Investor shall have furnished the Company with (i) an opinion of
counsel, if reasonably requested by the Company, which opinion and counsel shall
be reasonably satisfactory to the Company, to the effect that no such
registration is required because of the availability of an exemption from
registration under the Securities Act and under any applicable state securities
or "blue sky" laws and that the Transfer otherwise complies with this Agreement
and any other applicable federal securities laws and state securities or "blue
sky" laws and (ii) such representation and covenants of such Management Investor
as are reasonably requested by the Company to ensure compliance with any
applicable federal securities laws and state securities or "blue sky" laws.
2.3 Permitted Transfers.
2.3.1 Management Investors. The general restrictions
contained in Section 2.1.1 with respect to Transfers by Management Investors of
Shares (other than any restrictions in the Company's Articles of Association)
shall not apply to any Transfer of Shares by a Management Investor:
(a) to or among such Management Investor's spouse,
children (including adopted), grandchildren (including adopted) or other living
descendants, or executors, administrators, testamentary trustees or to a trust
or family partnership of which there are no principal (i.e., corpus)
beneficiaries or partners other than the grantor or one or more of such
Management Investor, spouse or described relatives, executors, administrators,
testamentary trustees, or by the laws of descent and distribution and provided
that, in the case of a trust, the existing beneficiaries and/or trustee(s)
and/or grantor(s) of such trust have the power to act with respect to the
trust's assets without court approval and, in the case of a family partnership,
that the partners thereof have the power to act with respect to the
partnership's assets without court approval and the partnership is not permitted
to (i) distribute assets to Persons who are not among the relatives listed above
or (ii) have partners who are not among the relatives listed above, and, in any
case, all the partners agree, for the benefit of the Company and the FPC
Shareholder, not to amend such provisions;
(b) to a legal representative of such Management Investor
in the event such Management Investor becomes mentally incompetent or to such
Management Investor's personal representative following the death of such
Management Investor;
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(c) with the prior written approval of the Company, which
approval may be granted or withheld by the Board of Directors of the Company, in
its sole and absolute discretion; or
(d) made in accordance with a specific right to transfer
set forth in the Employment Agreement of such Management Investor.
2.3.2 Permitted Transferees. Transferees to whom Transfers
are permitted pursuant to Sections 2.3.1 are referred to herein as "PERMITTED
TRANSFEREES". Any such permitted Transfer shall be subject to the terms of this
Agreement, including, without limitation, compliance with Sections 2.1.2.,
2.1.3, 2.2 and 2.7.
2.3.3 Transfer by Permitted Transferees. The restrictions
contained in Section 2.1.1 with respect to Transfers by Management Investors of
Equity Securities shall not apply to any Transfer by a Permitted Transferee of a
Management Investor to such Management Investor or to another Permitted
Transferee of such Management Investors, and any such Transferee shall also be a
"PERMITTED TRANSFEREE," subject to the provisions of Section 2.3.2.
2.3.4 Restrictions Herein are Additional. The restrictions
contained in this Article II shall be in addition to and not in lieu or
limitation of any restrictions on the ownership or Transfer of Equity Securities
contained in any share subscription agreement or Employment Agreement or any
analogous provision of any employment, compensation or benefit agreement or
arrangement or other agreement between the Company or any of its Affiliates and
any Management Investors or the Articles of Association of the Company;
provided, however, that, upon the termination of any such Employment Agreement
or other such agreement or arrangement or lapsing of such restrictions, the
restrictions and provisions contained herein shall continue in full force and
effect pursuant to this Agreement.
2.3.5 Transfers to the Company. Subject only to Section
2.1.4 and 2.2, no restrictions on Transfer under this Agreement shall apply to
Transfers to the Company.
2.4 After Acquired Equity Securities. Each Management
Investor hereby agrees that the provisions of this Agreement shall be fully
applicable in respect of any Equity Securities hereafter acquired by such
Management Investor, with the same force and effect as if such Management
Investor held such Equity Securities on the date of this Agreement.
2.5 Tag-Along Rights.
2.5.1 Sale Notice. If, prior to an IPO, the FPC Shareholder
(for purposes of this Section 2.5 the "INITIATOR") proposes to sell any of the
Shares owned by it, other than (a) to another entity comprising the FPC
Shareholder or an Affiliate thereof, (b) pursuant to the exercise of a
Drag-Along Right pursuant to Section 2.6, or (c) pursuant to a Piggyback
Registration, then the Initiator shall first give written notice (the "SALE
NOTICE") to the Company and to each of the Management Investors, stating that
the Initiator desires to make such sale, referring to this Section 2.5,
specifying the number of Shares proposed to be sold by the Initiator pursuant to
the offer (the "OFFER SHARES"), and specifying the price, the form of
consideration,
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name and description of the purchaser (including controlling Persons) and the
material terms pursuant to which such sale is proposed to be made.
2.5.2 Tag-Along Election. Within seven business days of the
date of receipt of the Sale Notice, each Management Investor shall deliver to
the Initiator and to the Company a written notice stating whether the Management
Investor elects to sell a pro rata portion of its Shares (equal to (a) the total
number of Shares owned by such Management Investor, plus the total number of
Shares then issuable upon exercise or conversion of Equity Securities (including
in the case of Options, only vested Options) then exercisable by such Management
Investor, multiplied by (b) a fraction, (i) the numerator of which is the number
of Offer Shares and (ii) the denominator of which is the total number of Shares
held by the Initiator plus the total number of Shares then issuable upon
exercise or conversion of any Equity Securities (including in the case of
Options, only vested Options), if applicable, then exercisable or convertible by
the Initiator) to such Proposed Transferee on the same terms, purchase price and
conditions as the Initiator (with respect to each Management Investor, its
"TAG-ALONG SHARES"). An election pursuant to the first sentence of this Section
2.5.2 shall constitute an irrevocable commitment by the Management Investor
making such election to sell such Tag-Along Shares to the Proposed Transferee if
the sale of Offer Shares to the Proposed Transferee occurs on the terms
contemplated hereby. Such terms may include a maximum number of Shares such
Proposed Transferee is willing to purchase, and, in such case, the Initiator and
the Management Investors selling Shares pursuant hereto shall be cut back pro
rata based on the number of Shares each such Management Investor is electing to
sell.
2.5.3 Seller's Rights to Transfer. (a) Third-Party Sale;
Tag-Along Buyer. A sale to a Proposed Transferee pursuant to this Section 2.5
shall only be consummated if the Proposed Transferee shall purchase, within 180
days of the date of the Sale Notice concurrently with and on substantially the
same terms and conditions and at the same price as the Offer Shares, all of each
Management Investor's Tag-Along Shares with respect to such sale, in accordance
with their elections pursuant to Section 2.5.2, and subject to the last sentence
thereof (the "TAG-ALONG RIGHT").
(b) Sale Agreement. Each Management Investor electing to
sell Tag-Along Shares (a "TAG-ALONG SELLER") agrees to cooperate in consummating
such a sale, including, without limitation, by becoming a party to the sale
agreement and all other appropriate related agreements, delivering, at the
consummation of such sale, share certificates and other instruments for such
Shares duly endorsed for transfer, free and clear of all liens and encumbrances,
and voting or consenting in favor of such transaction (to the extent a vote or
consent is required) and taking any other necessary or appropriate action in
furtherance thereof, including the execution and delivery of any other
appropriate agreements, certificates, instruments and other documents. Each
Tag-Along Seller shall be severally responsible for its proportionate share of
the third-party expenses of sale incurred by the sellers in connection with such
sale and the monetary obligations and liabilities incurred by the sellers in
connection with such sale. Such monetary obligations and liabilities shall
include (to the extent such obligations are incurred) obligations and
liabilities for indemnification (including for (i) breaches of representations
and warranties made in connection with such sale by the Company or any other
seller with respect to the Company or the Company's business, (ii) breaches of
covenants in effect prior to closing and (iii) other matters), and shall also
include amounts paid into escrow or
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subject to holdbacks, and amounts subject to post-closing purchase price
adjustments, provided that all such obligations are equally applicable on a
several and not joint basis to each Tag-Along Seller based on the consideration
received by such Tag-Along Seller. The foregoing notwithstanding, (i) without
the written consent of a Tag-Along Seller, the amount of such obligations and
liabilities for which such Tag-Along Seller shall be responsible shall not
exceed the gross proceeds received by such Tag-Along Seller in such sale, (ii) a
Tag-Along Seller shall not be responsible for the fraud of any other seller or
for any indemnification obligations and liabilities for breaches of
representations and warranties made by any other seller with respect to such
other seller's (A) ownership of and title to Shares of the Company, (B)
organization, (C) authority and (D) conflicts and consents.
(c) No Liability. Notwithstanding any other provision
contained in this Section 2.5.3, there shall be no liability on the part of the
Company or the Initiator in the event that a sale pursuant to this Section 2.5.3
is not consummated for any reason whatsoever. The decision whether to effect a
Transfer pursuant to this Section 2.5.3 shall be in the sole and absolute
discretion of the Initiator.
2.6 Drag-Along Right.
2.6.1 Exercise. If the FPC Shareholder proposes to make a
sale, in a bona fide arm's-length transaction or series of related transactions
to a Person that is not an Affiliate of or not controlled by an entity
comprising the FPC Shareholder or FPC, of at least 50% of its Shares (including
those Shares issuable upon exercise or conversion of Equity Securities then
exercisable or convertible by the FPC Shareholder including vested Options and
Options which become exercisable at or prior to the Drag-Along Sale) then held
by the FPC Shareholder to a Proposed Transferee (the "DRAG ALONG SALE"),
including pursuant to a share sale, merger, business combination,
recapitalization, consolidation, reorganization, restructuring or similar
transaction, the FPC Shareholder shall have the right (a "DRAG-ALONG RIGHT"),
exercisable upon 15 days' prior written notice to the Management Investors, to
require the Management Investors to sell their Shares and, at the election of
the FPC Shareholder, Equity Securities and Options (whether vested or unvested)
equal to (a) the total number of Shares owned by such Management Investors, plus
the total number of Shares then issuable upon the exercise of Options (whether
vested or unvested), multiplied by (b) a fraction (i) the numerator of which is
the number of Shares the FPC Shareholder proposes to sell to the Proposed
Transferee and (ii) the denominator of which is the total number of Shares held
by the FPC Shareholder plus the total number of Shares then issuable upon
exercise or conversion of any Equity Securities, if applicable, then exercisable
or convertible by the FPC Shareholder, to the Proposed Transferee on the same
terms and conditions and at the same price (in the case of Options, the purchase
price of each Option shall be equal to the purchase price attributable to the
number of Shares issuable upon exercise of such Option at the time of the
Drag-Along Sale less the exercise price thereof) as the FPC Shareholder would
receive in connection with such transaction.
2.6.2 Sale Agreement. Each Management Investor selling
Shares pursuant to a transaction contemplated by this Section 2.6 (a "DRAG-ALONG
SELLER") agrees to cooperate in consummating such a sale, including, without
limitation, by becoming a party to the sale agreement and all other appropriate
related agreements, delivering, at the consummation of such sale, share
certificates and other instruments for such Shares duly endorsed for transfer,
free and
12
clear of all liens and encumbrances, and voting or consenting in favor of such
transaction (to the extent a vote or consent is required) and taking any other
necessary or appropriate action in furtherance thereof, including the execution
and delivery of any other appropriate agreements, certificates, instruments and
other documents. Each Drag-Along Seller shall be severally responsible for its
proportionate share of the third-party expenses of sale incurred by the FPC
Shareholder in connection with such sale. Such monetary obligations and
liabilities shall include (to the extent such obligations are incurred) monetary
obligations and liabilities for indemnification (including for (a) breaches of
representations and warranties made in connection with such sale by the Company
or any other seller with respect to the Company or the Company's business and
(b) breaches of covenants in effect prior to closing), and shall also include
amounts paid into escrow or subject to holdbacks, and amounts subject to
post-closing purchase price adjustments, provided all such obligations are
equally applicable on a several and not joint basis to each Drag-Along Seller
based on the consideration received by such Drag-Along Seller. The foregoing
notwithstanding, (a) without the written consent of a Drag-Along Seller, the
amount of such obligations and liabilities for which such Drag-Along Seller
shall be responsible shall not exceed the gross proceeds received by such
Drag-Along Seller in such sale, and (b) a Drag-Along Seller shall not be
responsible for the fraud of any other seller or any indemnification obligations
and liabilities for breaches of representations and warranties made by any other
seller with respect to such other seller's (i) ownership of and title to Shares
of the Company, (ii) organization, (iii) authority and (iv) conflicts and
consents.
2.6.3 No Liability. Notwithstanding any other provision
contained in this Section 2.6, there shall be no liability on the part of the
Company or the FPC Shareholder in the event that the sale pursuant to this
Section 2.6 is not consummated for any reason whatsoever. The decision whether
to effect a Transfer pursuant to this Section 2.6 shall be in the sole and
absolute discretion of the FPC Shareholder.
2.7 Additional Provisions Relating to Restrictions on
Transfers.
2.7.1 Legends. Each of the Management Investors hereby
agrees that each outstanding certificate representing Shares held or owned by
such Management Investor or its Transferee, including any certificate
representing Shares acquired in accordance with the provisions of this Agreement
or the Employment Agreements, any certificates representing Shares issued upon
exercise of the Options and any Options, in any case, subject to the provisions
of this Agreement and issued prior to the date when the applicable restrictions
are terminated pursuant to Section 2.7.3, shall bear endorsements reading
substantially as follows:
(a) "The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under the securities laws of any state and may not be
transferred, sold or otherwise disposed of except while such a
registration is in effect or pursuant to an exemption from
registration under said Act and applicable state securities
laws."
(b) "The securities represented by this certificate are subject to
the terms and conditions set forth in a Management
Shareholders' Agreement, dated as of _________, 2003, as
amended from time to time, copies of which may be obtained
from the issuer or from the holder of this security. No
transfer of such
13
securities will be made on the books of the issuer unless
accompanied by evidence of compliance with the terms of such
agreement."
Each outstanding certificate representing Shares shall also
bear any legend required by the terms of any subscription agreement, the Share
Incentive Plan or as the Company may otherwise deem appropriate.
2.7.2 Copy of Agreement. A copy of this Agreement shall be
filed with the corporate secretary of the Company, and kept with the records of
the Company, and shall be made available for inspection by any Management
Investors at the principal executive offices of the Company.
2.7.3 Termination of Restrictions. The restriction referred
to in the endorsement required pursuant to Section 2.7.1(a) shall cease and
terminate as to any particular Shares when, in the reasonable opinion of counsel
for the Company, such restriction is no longer required in order to assure
compliance with the Securities Act and the state securities or "blue sky" laws.
The Company or the Company's counsel, at their election, may request from any
Management Investor a certificate or an opinion of such Management Investor's
counsel with respect to any relevant matters in connection with the removal of
the endorsement set forth in Section 2.7.1(a) from such Management Investor's
share certificates, any such certificate or opinion of counsel to be reasonably
satisfactory to the Company and its counsel. The restrictions referred to in
Section 2.7.1(b) shall cease and terminate as to any particular Shares when, in
the reasonable opinion of counsel for the Company, the provisions of this
Agreement are no longer applicable to such Shares or this Agreement shall have
terminated in accordance with its terms. Any other restrictions referred to in
any other legends required pursuant to Section 2.7.1 shall cease and terminate
when, in the reasonable opinion of counsel for the Company, such restrictions
are no longer applicable. Whenever such restrictions shall cease and terminate
as to any Shares or Options, the Management Investors holding such Shares shall
be entitled to receive from the Company, without expense (other than applicable
transfer taxes, if any, if such unlegended Shares are being delivered and
transferred to any Person other than the registered holder thereof), new
certificates for a like number of Shares or like number of Options not bearing
the relevant legend(s) set forth or referred to in Section 2.7.1.
ARTICLE III
REGISTRATION RIGHTS
3.1 Piggyback and Demand Registrations.
3.1.1 Piggyback Registrations. If at any time following an
IPO, (a) the Company proposes to register for sale by the Company under the
Securities Act any of its Equity Securities (other than a registration on Form
S-4 or Form S-8, or any successor or similar forms), or any Shares of an
Initiating Party pursuant to a Demand Registration under Section 3.1.2, in a
manner that would permit registration of Registrable Securities for sale to the
public under the Securities Act, and (b) the FPC Shareholder is selling Shares
in such registered sale, the Company will each such time promptly give written
notice to all Management Investors who beneficially own any Registrable
Securities of its intention to do so, of the registration form of the SEC that
has been selected by the Company and of such holders' rights under this Section
3.1 (the "PIGGYBACK NOTICE"). Subject to Section 3.1.4 hereto, the Company will
use its reasonable
14
best efforts to include, and to cause the underwriter or underwriters, if
applicable, to include, in the proposed offering, on the same terms and
conditions as the securities of the Company included in such offering, all
Registrable Securities that the Company has been requested in writing, within 15
calendar days after the Piggyback Notice is given, to register by the Management
Investors thereof (each such registration pursuant to this Section 3.1.1, a
"PIGGYBACK REGISTRATION"); provided, however, that (a) if, at any time after
giving a Piggyback Notice and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register such equity securities (or, in the case
of a Demand Registration, the Initiating Party thereof so determines), the
Company may, at its election (or, in the case of a Demand Registration, where
the Initiating Party thereof so determines, the Company shall), give written
notice of such determination to all Management Investors who beneficially own
any Registrable Securities and, thereupon, shall be relieved of its obligation
to register any Registrable Securities in connection with such abandoned
registration, and (b) in case of a determination by the Company to delay
registration of its equity securities (or, in the case of a Demand Registration,
the Initiating Party thereof so determines) the Company shall be permitted to
(or, in the case of a Demand Registration where the Initiating Party thereof so
determines, the Company, for a period not to exceed 60 days, shall) delay the
registration of such Registrable Securities for the same period as the delay in
registering such other Equity Securities (provided that clauses (a) and (b)
above shall not relieve the Company of its obligations under Section 3.1.2). In
the case of any registration of Registrable Securities in an underwritten
offering pursuant to this Section 3.1.1, all Management Investors proposing to
distribute their securities pursuant to this Section 3.1.l shall, at the request
of the Company (or, in the case of a Demand Registration, the Initiating Party
thereof), enter into an agreement in customary form with the underwriter or
underwriters selected by the Company (or, in the case of a Demand Registration,
selected in accordance with Section 3.1.2). Notwithstanding the foregoing,
following an IPO, the Company shall not be obligated to effect registration of
Registrable Securities for which Piggyback Registration is requested by a
Management Investor or if, at the time of such request, all such Registrable
Securities are eligible for sale to the public by the requesting Management
Investor or without registration under Rule 144, with such sale not being
limited by the volume restrictions thereunder.
3.1.2 Demand Registrations. The Company, at any time and
from time to time following the consummation of an IPO, upon a request of the
FPC Shareholder (the "INITIATING PARTY"), shall use its reasonable best efforts
to register under the Securities Act Registrable Securities held by the
Initiating Party (including, at the election of such Initiating Party, in an
underwritten offering) and bear all expenses in connection with such offering in
a manner consistent with Section 3.1.3 and shall enter into such other
agreements in furtherance thereof (each such registration pursuant to this
Section 3.1.2, a "DEMAND REGISTRATION"), and the Company shall provide customary
indemnifications in such instances (in a manner consistent with the
indemnification provision of this Article III) to the Initiating Party and any
such underwriters. The FPC Shareholder shall have the right to initiate such
number of Demand Registrations pursuant to this Section 3.1.2 as it shall
determine in its sole discretion. If any Demand Registration requested by the
FPC Shareholder is in the form of an underwritten offering, the FPC Shareholder
shall designate the underwriter or underwriters to be utilized in connection
such offering.
15
3.1.3 Expenses. The Company shall pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 3.1; provided, however, that each Management
Investor shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Management
Investors's Registrable Securities pursuant to a registration statement effected
pursuant to this Section 3.1.
3.1.4 Priority in Piggyback and Demand Registrations. If
the managing underwriter for a registration pursuant to this Section 3.1 shall
advise the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number (the "SECTION
3.1 SALE NUMBER") that can be sold in an orderly manner in such offering within
a price range acceptable to the Company (or, in the case of a Demand
Registration, to the Initiating Party thereof), the Company shall include in
such offering the following securities:
(a) in the case of a registration initiated by
the Company (i) first, all the securities the Company proposes to register for
its own sale, (ii) second, all the securities to be registered by the FPC
Shareholder, and (iii) third, all Registrable Securities requested to be
included by all Management Investors (or if the number of such Registrable
Securities exceeds the Section 3.1 Sale Number less the number of securities
included pursuant to clauses (a)(i) and (ii) above, then the number of such
Registrable Securities included in such registration pursuant to this clause
(a)(iii) shall equal the excess of the Section 3.1 Number over the number of
securities included pursuant to clause (a)(i) above and shall be allocated pro
rata among all requesting Management Investors, on the basis of the relative
number of shares of such Registrable Securities each such Management Investor
then holds); and
(b) in the case of a Demand Registration (i)
first, all the securities requested to be registered by the Initiating Party,
(ii) second, all the securities the Company proposes to register for its own
sale and (iii) third, all Registrable Securities requested to be included by all
Management Investors (or if the number of such Registrable Securities exceeds
the Section 3.1 Sale Number less the number of securities included pursuant to
clauses (b)(i) and (ii) above, then the number of such Registrable Securities
included in such registration pursuant to this clause (b)(iii) shall equal the
excess of the Section 3.1 Number over the number of securities included pursuant
to clauses (b)(i) and (ii) above and shall be allocated pro rata among all
requesting Management Investors, on the basis of the relative number of shares
of such Registrable Securities each such Management Investor then holds).
3.1.5 Underwriting Requirements. In connection with any
offering involving any underwriting of securities in a Piggyback Registration,
the Company shall not be required to include any Management Investor's
Registrable Securities in such underwriting unless such Management Investor
accepts the terms of the underwriting as agreed upon between the Company and the
underwriters in such quantities and on such terms as set forth in, Section
3.1.1, and such Management Investor agrees to sell such Management Investor's
securities on the basis provided therein and completes and/or executes all
questionnaires, indemnities, lock-ups, underwriting agreements and other
documents (including powers of attorney and custody arrangements) required
generally of all selling Management Investors, in each case, in customary form
and substance, which are requested to be executed in connection therewith.
16
3.2 Registration Procedures. If and whenever the Company
is required to use its reasonable best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Article III, the Company will, as soon as practicable:
(a) prepare and file with the SEC the requisite
registration statement with respect to such Registrable Securities and
use its reasonable best efforts to cause such registration statement to
become and remain effective for such period as the Company shall deem
appropriate;
(b) prepare and file with the SEC 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 such period as the Company shall deem
appropriate;
(c) comply with the provisions of the Securities Act with
respect to the sale or other disposition of all securities covered by
such registration statement during such period;
(d) furnish to each seller of such Registrable Securities
and each underwriter such number of copies of such registration
statement and of each amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and summary prospectus), in conformity with the requirements
of the Securities Act, and such other documents as such seller may
reasonably request;
(e) (i) promptly notify each Management Investor that
holds Registrable Securities covered by such registration statement,
(A) when such registration statement or any post-effective amendment or
supplement thereto becomes effective, (B) of the issuance by the SEC or
any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of such registration
statement (and take all reasonable action to prevent the entry of such
stop order or to remove it if entered, or the initiation of any
proceedings for that purpose), or (C) of the happening of any event as
a result of which the registration statement, as then in effect, the
prospectus related thereto or any document included therein by
reference includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made and (ii) in the case of an
event under clause (e)(i)(B) or (C), promptly file such amendments and
supplements which may be required on account of such event and use its
reasonable best efforts to cause each such amendment and supplement to
become effective;
(f) promptly furnish counsel for each underwriter, if
any, and for the selling Management Investors of Registrable Securities
copies of any written request by the SEC or any state securities
authority for amendments or supplements to a registration statement and
prospectus or for additional information;
17
(g) use reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a registration statement
at the earliest possible time;
(h) use its best efforts to cause all such Registrable
Securities covered by such registration statement to be listed on the
principal securities exchange or authorized for quotation on Nasdaq, if
any, on which similar equity securities issued by the Company are then
listed or authorized for quotation, or eligible for listing or
quotation, if the listing or authorization for quotation of such
securities is then permitted under the rules of such exchange or the
NASD;
(i) enter into an underwriting agreement with the
underwriter of such offering in the form customary for such underwriter
for similar offerings, including such representations and warranties by
the Company, provisions regarding the delivery of opinions of counsel
for the Company and accountants' letters, provisions regarding
indemnification and contribution, and such other terms and conditions
as are at the time customarily contained in such underwriter's
underwriting agreements for similar offerings (the sellers of
Registrable Securities that are to be distributed by such
underwriter(s) may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriter(s) shall
also be made to and for the benefit of such sellers of Registrable
Securities);
(j) make available for inspection by representatives of
the selling Management Investors who hold Registrable Securities and
any underwriters participating in any disposition pursuant hereto and
any counsel or accountant retained by such Management Investors or
underwriters, all relevant financial and other records, pertinent
corporate documents and properties of the Company and cause the
respective officers, directors and employees of the Company to supply
all information reasonably requested by any such representative,
underwriter, counsel or accountant in connection with a registration
pursuant hereto; provided, however, that, with respect to records,
documents or information which the Company determines, in good faith,
to be confidential and as to which the Company notifies such
representatives, underwriters, counsel or accountants in writing of
such confidentiality, such representatives, underwriters, counsel or
accountants shall not disclose such records, documents or information
unless (i) the release of such records, documents or information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, or (ii) such records, documents or information have
previously been generally made available to the public. Each selling
Management Investor of such Registrable Securities agrees that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company or its Affiliates
(or for such Management Investor's business purposes or for any reason
other than in connection with a registration hereunder) unless and
until such information is made generally available (other than by such
Management Investor or where such Management Investor knows that such
information became publicly available as a result of a breach of any
confidentiality arrangement) to the public. Each selling Management
Investor of such Registrable Securities further agrees that it will,
upon learning that disclosure of such records is sought, give notice to
the Company and allow
18
the Company, at its expense, to undertake appropriate action to prevent
disclosure of the records deemed confidential;
(k) permit any beneficial owner of Registrable Securities
who, in the sole judgment, exercised in good faith, of such holder,
might be deemed to be a controlling Person of the Company, to
participate in the preparation of such registration or comparable
statement and to require the insertion therein of material, furnished
to the Company in writing, that in the judgment of such holder, as
aforesaid, should be included; and
(l) make reasonably available its employees and personnel
and otherwise provide reasonable assistance to the underwriters (taking
into account the needs of the Company's businesses and the requirements
of the marketing process) in the marketing of Registrable Securities in
any underwritten offering.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing. The Company shall
not be required to register or qualify any Registrable Securities covered by
such registration statement under any state securities or "blue sky" laws of
such jurisdictions other than as it deems necessary in connection with the
chosen method of distribution or to take any other actions or do any other
things other than those it reasonably deems necessary or advisable to consummate
such distribution, and the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not otherwise be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction.
Each beneficial owner of Registrable Securities agrees that
upon receipt of any notice from the Company of the happening of any event of the
kind described in clauses (d)(i)(B) and (d)(i)(C) above, such beneficial owner
will forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such
beneficial owner's receipt of the copies of the supplemented or amended
prospectus contemplated by clause (e)(ii) above, and, if so directed by the
Company, such beneficial owner will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such beneficial
owner's possession, of the prospectus covering such Registrable Securities that
was in effect prior to such amendment or supplement.
3.3 Indemnification. (a) In the event of any registration
of any Registrable Securities pursuant to this Article III, the Company will,
and hereby does, indemnify and hold harmless, to the fullest extent permitted by
law, the seller of any Registrable Securities covered by such registration
statement, its directors, officers, fiduciaries, employees and shareholders or
members or general and limited partners (and the directors, officers,
fiduciaries, employees and shareholders or members or general and limited
partners thereof), each other Person who participates as an underwriter or a
qualified independent underwriter, if any, in the offering or sale of such
securities, each director, officer, fiduciary, employee and shareholder or
general and limited partner of such underwriter or qualified independent
underwriter, and each other Person
19
(including any such Person's directors, officers, fiduciaries, employees and
shareholder or members or general and limited partners), if any, who controls
such seller or any such underwriter or qualified independent underwriter, within
the meaning of the Securities Act, against any and all Claims in respect thereof
and expenses (including reasonable fees and expenses of counsel and any amounts
paid in any settlement effected with the Company's consent, which consent shall
not be unreasonably withheld or delayed) to which each such indemnified party
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Claims or expenses arise out of or are based upon any of the
following actual or alleged statements, omissions or violations (each, a
"VIOLATION"): (i) any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which such securities were
registered pursuant to this Agreement under the Securities Act or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus or any amendment or supplement thereto
(unless corrected in the final prospectus), together with the documents
incorporated by reference therein, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or (iii) any violation by the Company of any federal,
state or common law rule or regulation applicable to the Company and relating to
action required of or inaction by the Company in connection with any such
registration, and the Company will reimburse any such indemnified party for any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim as such expenses are
incurred; provided, however, that the Company shall not be liable to any such
indemnified party in any such case to the extent such Claim or expense arises
out of or is based upon any Violation that occurs in reliance upon and in
conformity with written information furnished to the Company or its
representatives by or on behalf of such indemnified party expressly stating that
such information is for use therein.
(b) Each holder of Registrable Securities that are
included in the securities as to which any Demand Registration or Piggyback
Registration is being effected (and, if the Company requires as a condition to
including any Registrable Securities in any registration statement filed in
connection with any Demand Registration or Piggyback Registration, any
underwriter and qualified independent underwriter, if any) shall, severally and
not jointly, indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 3.3(a)), to the fullest extent permitted by law,
the Company, its directors, officers, fiduciaries, employees and shareholders
(and the directors, officers, fiduciaries, employees and shareholders or members
or general and limited partners thereof) and each Person (including any such
Person's directors, officers, fiduciaries, employees and shareholders or members
or general and limited partners), if any, controlling the Company within the
meaning of the Securities Act and all other prospective sellers and their
directors, officers, fiduciaries, employees and shareholders or general and
limited partners and respective controlling Persons (including any such Person's
directors, officers, fiduciaries, employees and shareholders or members or
general and limited partners) against any and all Claims and expenses (including
reasonable fees and expenses of counsel and any amounts paid in any settlement
effected with the consent of the indemnifying party, which consent shall not be
unreasonably withheld or delayed) to which each such indemnified party may
become subject under the Securities Act, the Exchange Act or
20
otherwise, insofar as such Claims or expenses arise not of or are based upon any
Violation that occurs in reliance upon and in conformity with written
information furnished to the Company or its representatives by or on behalf of
such holder or underwriter or qualified independent underwriter, if any,
expressly stating that such information is for use in connection with any
registration statement, preliminary, final or summary prospectus or amendment or
supplement or document incorporated by reference into any of the foregoing.
(c) Indemnification similar to that specified in Sections
3.3(a) and 3.3(b) (with appropriate modifications) shall be given by the Company
and each seller of Registrable Securities (and, if the Company requires as a
condition to including any Registrable Securities in any registration statement
filed in connection with any Demand Registration or Piggyback Registration, any
underwriter and qualified independent underwriter, if any) with respect to any
required registration or other qualification of securities under any state
securities or "blue sky" laws.
(d) Any Person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 3.3, but the failure of any
indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under the preceding paragraphs of this Section 3.3,
except to the extent the indemnifying party is prejudiced thereby and shall not
relieve the indemnifying party from any liability that it may have to any
indemnified party other than under this Section 3.3. In case any action or
proceeding is brought against an indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such indemnified
and indemnifying parties may exist in respect of such claim, to assume the
defense thereof jointly with any other indemnifying party similarly notified, to
the extent that it chooses, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not be liable
to such indemnified party for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that (i) if the
indemnifying party fails to take reasonable steps necessary to defend diligently
the action or proceeding within 20 days after receiving notice from such
indemnified party that the indemnified party believes it has failed to do so; or
(ii) if such indemnified party who is a defendant in any action or proceeding
that is also brought against the indemnifying party reasonably shall have
concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party; or (iii) if
representation of both parties by the same counsel is otherwise inappropriate
under applicable standards of professional conduct, then, in any such case, the
indemnified party shall have the right to assume or continue its own defense as
set forth above (but with no more than one firm of counsel for all indemnified
parties in each jurisdiction, except to the extent any indemnified party or
parties reasonably shall have concluded that there may be legal defenses
available to such party or parties that are not available to the other
indemnified parties or to the extent representation of all indemnified parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct) and the indemnifying party shall be liable for any
expenses therefor. No indemnifying party shall, without the written consent of
the indemnified party, which consent
21
shall not be unreasonably withheld, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or nor the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(A) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If for any reason the foregoing indemnity is
unavailable or is insufficient to hold harmless an indemnified party under
Sections 3.3(a), 3.3(b) or 3.3(c), then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of any Claim
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other hand
from the relevant offering of securities. If, however, the allocation provided
in the immediately preceding sentence is not permitted by applicable law, or if
the indemnified party failed to give the notice required by Section 3.3(d) above
and the indemnifying party is prejudiced thereby, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative fault of but also
the relative benefits received by the indemnifying party, on the one hand, and
the indemnified party, on the other hand, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the Violation relates to information supplied by
the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 3.3(e) were to be determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the preceding sentences of
this Section 3.3(e). The amount paid or payable in respect of any Claim shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such Claim.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. Notwithstanding
anything in this Section 3.3(e) to the contrary, no indemnifying party (other
than the Company) shall be required pursuant to this Section 3.3(e) to
contribute any amount in excess of the gross proceeds received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, claims, damages or liabilities of the indemnified parties
relate.
(f) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution that any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the transfer
of the Registrable Securities by any such party.
(g) The indemnification and contribution required by this
Section 3.3 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
22
(h) In connection with underwritten offerings, the
Company will use reasonable best efforts to negotiate terms of indemnification
that are reasonably favorable to the various sellers pursuant thereto, as
appropriate under the circumstances.
3.4 Holdback Agreement. (a) If requested in writing by
the Company or the underwriter of any underwritten offering including, without
limitation, an IPO, each Management Investor agrees not to effect any public
sale or distribution, including any sale pursuant to Rule 144, of any
Registrable Securities or any other equity security of the Company or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (in each case, other than as part of such underwritten public
offering) within 14 days before or 180 days after the effective date of a
registration statement or for such shorter period as the sole or lead managing
underwriter or the Company shall request, in any such case, unless consented to
by such underwriter or the Company, as applicable.
(b) If requested in writing by the underwriter of any
offering in connection with an underwritten Demand Registration, the Company
agrees not to effect any public sale or distribution (other than public sales or
distributions solely by and for the account of the Company of securities issued
(i) pursuant to any employee or director benefit or similar plan or any dividend
investment plan or (ii) in any acquisition by the Company) of any Registrable
Securities or any other Equity Security of the Company or of any security
convertible into or exchangeable or exercisable for any Equity Security of the
Company (in each case, other than as part of such underwritten public offering),
within 14 days before or 180 days after the effective date of a registration
statement filed in connection with a Demand Registration, or for such shorter
period as the sole or lead managing underwriter shall request, in any such case,
unless consented to by such underwriter.
3.5 Deferral. Notwithstanding anything to the contrary
contained herein, the Company shall not be obligated to prepare and file, or
cause to become effective, any registration statement pursuant to Section 3.1.2
at any time when, in the good faith judgment of the Board of Directors of the
Company, the filing thereof at the time requested or the effectiveness thereof
after filing should be delayed to permit the Company to include in the
registration statement the Company's financial statements (and any required
audit opinion thereon) for the then immediately preceding fiscal year or fiscal
quarter, as the case may be. The filing of a registration statement by the
Company cannot be deferred pursuant to the provisions of the immediately
preceding sentence beyond the time that such financial statements (or any
required audit opinion thereon) would be required to be filed with the SEC as
part of the Company's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, if the Company were then obligated to file such
reports. Notwithstanding anything to the contrary contained herein, the Company
shall not be obligated to file a registration statement, or cause a registration
statement previously filed pursuant to Section 3.1 to become effective, and may
suspend sales by the holders of Registrable Securities under any registration
that has previously become effective, at any time when, in the good faith
judgment of the Board of Directors of the Company, it reasonably believes that
the effectiveness of such registration statement or the offering of securities
pursuant thereto would materially adversely affect a pending or proposed
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction or negotiations, discussions or pending proposals with respect
thereto; provided, however, that deferrals pursuant to this sentence shall not
exceed, in the aggregate, 120 days in any twelve-
23
month period. The filing of a registration statement, or any amendment or
supplement thereto, by the Company cannot be deferred, and the rights of holders
of Registrable Securities to make sales pursuant to an effective registration
statement cannot be suspended, pursuant to the provisions of the immediately
preceding sentence for more than 30 days after the abandonment or the
consummation of any of the foregoing proposals or transactions, unless invoked
under new circumstances.
ARTICLE IV
LIMITED CALL AND PUT RIGHTS
4.1 Company Call Rights. If a Management Investor's
employment by the Company and each of its subsidiaries (or its respective
successor under the Employment Agreement, if any) is terminated by the Company
or its subsidiaries (or their respective successors) for Cause (as defined in
such Management Investor's Employment Agreement or, if such Management Investor
does not have an Employment Agreement, in any analogous provision of any
employment, compensation or benefit agreement or arrangement, if any, and if not
so defined, upon the good faith determination of the Board of Directors of the
Company) or is terminated by the Management Investor for any reason (other than
upon the failure of the Company to renew the Management Investor's Employment
Agreement (and provided that the Management Investor is not otherwise in breach
thereof at the time of such non-renewal and has continued his employment through
the employment term (a "Non-Renewal Event")) or his retirement as provided for
below), the Company shall have the right, at its election, to purchase all or a
portion of the Management Investor's Shares (including any Shares held by its
Permitted Transferees) at any time and from time to time (but no later than the
earlier of four years after such termination or the occurrence of a Change of
Control) at a price equal to the lower of the Cost Price and Fair Market Value
of such shares as of the date of exercise of the call right by the Company (the
"Call Date"), as may be adjusted below; provided that in the case of any Shares
realized by a Management Investor in connection with the exercise of any
Option-A Tranche the Cost Price shall be $10.00 per share. Upon the death or
disability of a Management Investor, a Non-Renewal Event or the retirement by
the Executive after satisfactory service with the Company through to the normal
retirement date provided for in any Company retirement plan or if earlier such
date as may otherwise be acceptable to the Company, the Company shall have the
right, at its election, to purchase all or a portion of the Management
Investor's Shares (including any Shares held by its Permitted Transferees) at
any time and from time to time (but no later than the earlier of four years or
the occurrence of a Change of Control) after such termination at a price equal
to the Fair Market Value of such Shares determined as of the Call Date, as may
be adjusted below. Notwithstanding the foregoing two sentences, if a Management
Investor violates any obligation not to compete with the Company or its
Affiliates or otherwise engages in activities in violation of the Management
Investor's continuing obligation to the Company or its Affiliates (whether
during or within 18 months of termination of the Management Investor's
employment with the Company or any of its Affiliates), the Company shall have
the right, at its election, to purchase all or a portion of the Management
Investor's Shares (including any Shares held by its Permitted Transferees) at
any time and from time to time (but no later than four years after such
termination or the occurrence of a Change of Control) at a price equal to the
lower of Cost Price and Fair Market Value of such Shares, subject in all cases
to the specific provisions, if any, regarding option and equity forfeiture for
breach of restrictive covenants agreed to in such
24
Management Investor's Employment Agreement, if any. The closings of such
purchases of Shares by the Company shall take place upon customary and
reasonable documents. Except where otherwise provided in such Management
Investors' Employment Agreement, if any, the Company shall pay the applicable
purchase price in cash to the extent that (a) such funds are available at the
Company (such availability to be determined by the Board of Directors in its
sole discretion) and (b) the Company is permitted to purchase such shares for
cash (under both applicable law and the credit and other material agreements of
the Company and its Subsidiaries) as follows: (A) in the case of a repurchase
for "Cost Price", the Company shall pay the purchase in cash within ninety (90)
days of Call Date, and (B) in the case of a repurchase for Fair Market Value (i)
as of the Call Date, the Company shall pay 80% of the initial estimated Fair
Market Value (the "Initial 80% Payment") as of the Call Date attributed by the
Board to the Management Investor's Shares to be repurchased (the "Call Shares")
and (ii) promptly after the third anniversary of the Call Date to the extent
that the Company and its outside consultants have confirmed what the actual Fair
Market Value of the Call Shares was as of the Call Date (the "Lookback Fair
Market Value"), the Company shall pay to the Management Investor (or his estate
or designee) an amount equal to the difference (if any) between (x) the Lookback
Fair Market Value and (y) the Initial 80% Payment. Any amount not permitted to
be paid in cash as a result of any of the restrictions set forth in the
preceding sentence may be paid for by the Company by delivery of a subordinated
note or other document evidencing a continuing obligation of the Company, and
the amount represented by such continuing obligation along with any accrued
interest shall be paid by the Company on or before the fifth (5th) anniversary
of the date of purchase (or such later date as may be necessary to permit the
Company to comply with any applicable borrowing covenants affecting its payment
obligations). Interest on such obligation shall accrue at the applicable federal
rate as defined in Section 1274(d) of the Internal Revenue Code of 1986, as
amended (the "APPLICABLE FEDERAL RATE"). The Board of Directors of the Company
may, in its discretion, assign the rights and obligations of the Company under
this Section 4.1 to any other Person, but no such assignment shall relieve the
Company of its obligations to the extent not satisfied by such assignee.
Notwithstanding the foregoing, with respect to any Shares, which as of the date
of purchase and sale pursuant to the call right set forth in this Section 4.1
(i) were purchased as the result of the exercise conversion or exchange of an
Option or other Equity Security or (ii) have not been owned by the respective
Management Investor for at least 180 days (in either case "Unmatured Shares"),
the closing of the purchase and sale of such Unmatured Shares shall be delayed
until a date at least 181 days following the acquisition by the respective
Management Investor (whether following the exercise of an Option or otherwise)
and the purchase price shall be determined at the time of such delayed closing.
Notwithstanding any provision of this Agreement to the contrary (including
Section 5.1.1 hereof), the rights of the Company to purchase any Shares
hereunder shall expire upon the seventh (7th) anniversary of the date of this
Agreement.
4.2 Limited Put with Respect to Option-A Tranche. If a
Management Investor's employment by the Company and each of its subsidiaries (or
its respective successor under the Employment Agreement, if any) is terminated
by the Company or its subsidiaries (or their respective successors) for any
reason, such Management Investor shall, following his termination, have the
right, at his election in writing, to have the Company purchase all of the
Management Investor's Shares that were acquired upon exercise of any Option-A
Tranche (including any such Shares held by his Permitted Transferees) within
ninety (90) days of such
25
termination at a per share price equal to the lower of $10.00 and the Fair
Market Value of such shares as of the date of exercise of the put right by the
Management Investor (the "Put Date"), as may be adjusted below; provided further
that with respect to any portion of the Option- A Tranche that is not yet
exercised as of such termination, Messrs Freudberg ("Freudberg") and March
("March") in their capacity as Management Investors may elect to have the
Company purchase the unexercised portion of their Option- A Tranche for a price
equal to the product of (x) the difference (if any) between (i) the lesser of
$10.00 and the Fair Market Value of such shares, minus (ii), $6.50, and (y) the
number of shares represented by the unexercised portion of the Option-A Tranche
(the "Net Option Settlement"), conditioned on the following: (A) the Net Option
Settlement shall not exceed $700,000 in the case of Freudberg and $196,260 in
the case of March, and (B) within 90 days from the execution of this Agreement,
the Board of Directors shall approve the Net Option Settlement arrangement
unless it determines, in its good faith reasonable judgment, that the
implementation of the Net Option Settlement arrangement will result in any
material adverse accounting consequences for the Company; and provided further
that if the Board of Directors does not approve the implementation of the Net
Option Settlement arrangement as described above, the Company (acting through
the Board of Directors), Freudberg and March shall cooperate in good faith to
implement promptly a mutually satisfactory alternative that would provide
Freudberg and March with the economic value, as of the Put Date, equal to the
Net Option Settlement. For purposes of the foregoing last proviso, and to the
extent otherwise permitted by law and subject to the exercise periods of the
Option-A Tranche, if the Company can identify a willing securities broker or
trader as of the Put Date, the Company, Freudberg and March agree that one
mutually satisfactory alternative shall be that if, as of the Put Date, (1) the
Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act;
(2) the Shares are listed on a national securities exchange or interdealer
quotation system; and (3) the Fair Market Value of the Shares is greater than
$6.50, then, such securities broker or trader shall facilitate an open market
securities transaction in connection with the Shares underlying the Option-A
Tranche that will provide the Company with an amount equal to the exercise price
of the Shares then subject to the Option-A Tranche held by Freudberg or March,
as the case may be, and will provide Freudberg or March, as the case may be,
with all of the remaining proceeds from such securities transaction. The closing
of the purchase of such Shares by the Company shall take place upon customary
and reasonable documents. The Company shall pay the applicable purchase price in
cash to the extent that (a) such funds are available at the Company (such
availability to be determined by the Board of Directors in its sole discretion)
and (b) the Company is permitted to purchase such shares for cash (under both
applicable law and the credit and other material agreements of the Company and
its Subsidiaries) as follows: (A) in the case of a repurchase for "Cost Price",
the Company shall pay the purchase in cash within ninety (90) days of the Put
Date, and (B) in the case of a repurchase for Fair Market Value (i) as of the
Put Date, the Company shall pay 80% of the initial estimated Fair Market Value
(the "Initial 80% Payment") as of the Put Date attributed by the Board to the
Management Investor's Shares to be repurchased (the "Put Shares") and (ii)
promptly after the third anniversary of the Put Date to the extent that the
Company and its outside consultants have confirmed what the actual Fair Market
Value of the Put Shares was as of the Put Date (the "Lookback Fair Market
Value"), the Company shall pay to the Management Investor (or his estate or
designee) an amount equal to the difference (if any) between (x) the Lookback
Fair Market Value and (y) the Initial 80% Payment. Any amount not permitted to
be paid in cash as a result of any of the restrictions set forth in the
preceding sentence may be paid for by the
26
Company by delivery of a subordinated note or other document evidencing a
continuing obligation of the Company, and the amount represented by such
continuing obligation along with any accrued interest shall be paid by the
Company on or before the fifth (5th) anniversary of the date of purchase (or
such later date as may be necessary to permit the Company to comply with any
applicable borrowing covenants affecting its payment obligations). Interest on
such obligation shall accrue at the applicable federal rate as defined in
Section 1274(d) of the Internal Revenue Code of 1986, as amended (the
"APPLICABLE FEDERAL RATE"). The Board of Directors of the Company may, in its
discretion, assign the rights and obligations of the Company under this Section
4.2 to any other Person, but no such assignment shall relieve the Company of its
obligations to the extent not satisfied by such assignee. Notwithstanding the
foregoing, with respect to any Shares, which as of the date of purchase and sale
pursuant to the put right set forth in this Section 4.2 either (i) were
purchased as the result of the exercise conversion or exchange of an Option-A
Tranche or (ii) have not been owned by the respective Management Investor for at
least 180 days (in either case "Unmatured Shares"), the closing of the purchase
and sale of such Unmatured Shares shall be delayed until a date at least 181
days following the acquisition by the respective Management Investor (whether
following the exercise of an Option or otherwise) and the purchase price shall
be determined at the time of such delayed closing. Notwithstanding any provision
of this Agreement to the contrary (including Section 5.1.1 hereof), the
obligation of the Company to purchase any Shares hereunder shall expire upon the
fifth (5th) anniversary of the date of this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Effectiveness; Term.
5.1.1 This Agreement shall become effective as of _______,
2003 (the "EFFECTIVE DATE") and the rights and obligations of, and restrictions
on, the Management Investors under Article II shall terminate when the FPC
Shareholder and its Affiliates no longer hold in the aggregate at least [10%] of
the fully diluted Shares then outstanding (subject, however, to all obligations
of the parties hereto which must be fulfilled prior to such event) and provided
that in any event the provisions of Article IV shall continue for so long as
provided for therein. Notwithstanding the foregoing, in the event the Company
enters into any agreement to merge with or into any other Person or adopts any
other plan of recapitalization, consolidation, reorganization or other
restructuring transaction (other than in connection with any initial public
offering by the Company) as a result of which the Management Investors and their
respective Permitted Transferees (including the FPC Shareholder and any
Affiliates thereof) shall own less than a majority of the outstanding voting
power of the entity surviving such transaction, this Agreement shall terminate.
5.1.2 Notwithstanding anything in Section 5.1.1 to the
contrary, the provisions contained in Article III shall continue to remain in
full force and effect until the date hereof and the date on which there are no
longer any Registrable Securities outstanding or issuable or thereafter
available for or subject to issuance to any Management Investors upon exercise
or
27
conversion of any Options, rights or other convertible securities; provided,
however, that the provisions of Section 3.3 shall survive termination pursuant
to Section 5.1.1 or this Section 5.1.2.
5.2 No Voting or Conflicting Agreements. Prior to an IPO,
no Management Investor shall grant any proxy or enter into or agree to be bound
by any voting trust with respect to the Shares nor, at any time, shall any
Management Investor enter into any shareholder agreements or arrangements of any
kind with any Person with respect to the Shares inconsistent with the provisions
of this Agreement (whether or not such agreements and arrangements are with
holders of Shares that are not parties to this Agreement). The foregoing
prohibition includes, but is not limited to, agreements or arrangements with
respect to the acquisition, disposition or voting of Shares inconsistent with
the provisions of this Agreement. No Management Investor shall act, any time,
for any reason, as a member of a group or in concert with any other Persons in
connection with the acquisition, disposition or voting of Shares in any manner
that is inconsistent with the provisions of this Agreement.
5.3 Approval of Share Incentive Plan by Management
Investors. The Management Investors, by their execution of this Agreement,
hereby approve the Share Incentive Plan copies of which are attached to this
Agreement as Exhibit A.
5.4 Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails to perform any
of its obligations hereunder, and, accordingly, agree that each party, in
addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement. Any remedy under this Section 5.4 is subject to certain equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought.
5.5 Notices. All notices, statements, instructions or
other documents required to be given hereunder shall be in writing and shall be
given either personally or by mailing the same in a sealed envelope, by
overnight courier or by telecopy, addressed to the Company at its principal
offices and to the other parties at their addresses reflected on the signature
pages hereto. Each party hereto, by written notice given to the other parties
hereto in accordance with this Section 5.5, may change the address to which
notices, statements, instructions or other documents are to be sent to such
party. All notices, statements, instructions and other documents hereunder that
are mailed or telecopied shall be deemed to have been given on the date of
mailing or, in the case of telecopying, upon confirmation of receipt.
5.6 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties, and their respective
permitted successors and assigns. If any Management Investor or any Transferee
of any Management Investor shall acquire any Shares in any manner, whether by
operation of law or otherwise, such Shares shall be held subject to all of the
terms of this Agreement, and, by taking and holding such Shares, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement.
5.7 Recapitalizations and Exchanges Affecting Shares. The
provisions of this Agreement shall apply, to the full extent set forth herein
with respect to Shares, to any and all
28
other shares in the capital of the Company and all Equity Securities of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) that may be issued in respect of, in
exchange for, or in substitution of, Shares or Equity Securities, or that may be
issued by reason of any share dividend, share split, reverse share split,
combination, recapitalization, reclassification or otherwise. Upon the
occurrence of any of such events, numbers of Shares and amounts hereunder and
any other appropriate terms shall be appropriately adjusted, as determined in
good faith by the Board of Directors of the Company.
5.8 Governing Law. This Agreement shall be governed and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to the principles of conflicts of law thereof.
5.9 Descriptive Headings, Etc. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning of terms contained herein. Unless the context of this
Agreement otherwise requires, references to "hereof," "herein," "hereby,"
"hereunder" and similar terms shall refer to this entire Agreement.
5.10 Amendment. This Agreement may not be amended or
supplemented, except by an instrument in writing signed by the Company, the FPC
Shareholder and by Management Investors holding a majority of the then,
outstanding Shares held by all Management Investors; provided, however, that any
amendment supplement or modification of this Agreement that adversely affects
the rights and obligations of any particular Management Investor (an "AFFECTED
HOLDER") or group thereof, as a class, differently than those of the other
Management Investors shall also require the approval of Affected Holders holding
a majority of the outstanding Shares held by all such Affected Holders. The
foregoing notwithstanding, the Company, without the consent of any other party
hereto, may amend Schedule I and the signature pages hereto, and enter into
Joinder Agreements in order to add any Management Investor or any other party
that becomes a holder of Shares or securities convertible into or exercisable
for Shares and to reflect Transfers permitted under this Agreement.
5.11 Additional Issuances; Joinder. Any Person that is not
already a party to this Agreement in the same shareholder capacity as such
Person would be following the Transfer and who is acquiring any Equity
Securities (except for any acquisition thereof (a) in an offering registered
under the Securities Act or (b) in a Rule 144 Transaction) shall on or before
the transfer or issuance to it of such Equity Securities, sign and deliver to
the Company a Joinder Agreement and shall thereby become a party to this
Agreement. If such Person meets the definition of an Affiliate of the FPC
Shareholder (other than by reason of holding the Shares), then such Person shall
be treated as comprising the FPC Shareholder hereunder. If such Person meets the
definition of a Management Investor, such Person shall be treated as a
Management Investor hereunder. The Company shall endeavour to require each
Person acquiring an Option, warrant or other right to purchase Shares or other
Equity Securities under any option or other equity participation plan to execute
a Joinder Agreement.
5.12 Severability. If any term or provision of this
Agreement shall to any extent be invalid or unenforceable, the remainder of this
Agreement shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent
29
permitted by law. Upon the determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties shall negotiate in
good faith to modify this Agreement so as to affect their original intent as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the extent possible.
5.13 Further Assurances. The parties hereto shall from
time to time execute and deliver all such further documents and do all acts and
things as the other parties may reasonably require to effectively carry out or
better evidence or perfect the full intent and meaning of this Agreement,
including, to the extent necessary or appropriate, using all reasonable efforts
to cause the amendment of the Articles of the Company in order to provide for
the enforcement of this Agreement in accordance with its terms. In furtherance
and not in limitation of the foregoing, in the event of any amendment,
modification or termination of this Agreement in accordance with its terms, the
Board of Directors of the Company shall meet within 30 days following such
amendment, modification or termination or as soon thereafter as is practicable
for the purpose of amending the Articles of the Company, as may be required as a
result of such amendment, modification or termination, and, to the extent
required by law, proposing such amendments to the shareholders entitled to vote
thereon, and such action shall be the first action to be taken at such meeting.
5.14 Complete Agreement; Counterparts. This Agreement
(together with the Share Incentive Plan, the Employment Agreements and the other
agreements referred to herein and therein) constitutes the entire agreement and
supersedes all other agreements and understandings, both written and oral, among
the parties or any of them, with respect to the subject matter hereof. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
5.15 Certain Transactions. The parties hereto agree that
Fox Paine & Company, LLC shall have the right to perform all consulting,
financing, investment banking and similar services for the Company and its
subsidiaries, for customary compensation (as determined by the Board of
Directors of the Company in its sole discretion) and on other terms that are
customary for similar engagements with unaffiliated third parties, and neither
the Company nor its subsidiaries shall engage any other Person to perform such
services during the term of this Agreement, except to the extent Fox Paine &
Company, LLC shall consent thereto or shall decline, at its sole election, to
perform such services; in any such case, so long as FPC holds at least [10%] of
the outstanding Shares.
5.16 No Third-Party Beneficiaries. The provisions of this
Agreement shall be only for the benefit of the parties to this Agreement, and no
other Person (other than any indemnified party with respect to Section 3.3)
shall have any third-party beneficiary or other right hereunder.
[SIGNATURES ON FOLLOWING PAGES]
30
MANAGEMENT SHAREHOLDERS' AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
THE COMPANY:
VIGILANT INTERNATIONAL, LTD.
By: /s/ Troy W. Thacker
------------------------------------
Name: Troy W. Thacker
Title: President
FPC SHAREHOLDER:
U.N. HOLDINGS (CAYMAN), LTD.
By: /s/ Troy W. Thacker
-------------------------------
Name: Troy W. Thacker
Title: Director
MANAGEMENT SHAREHOLDERS' AGREEMENT
CONTINUATION OF COUNTERPART SIGNATURE PAGES
MANAGEMENT INVESTORS
IN WITNESS WHEREOF, the parties below have executed this Agreement as
of the first date set forth above.
/s/ James B. McCreesh
------------------------------------
Name: James B. McCreesh
MANAGEMENT SHAREHOLDERS' AGREEMENT
CONTINUATION OF COUNTERPART SIGNATURE PAGES
MANAGEMENT INVESTORS
IN WITNESS WHEREOF, the parties below have executed this Agreement as
of the first date set forth above.
/s/ Seth D. Freudberg
-------------------------------------
Name: Seth D. Freudberg
MANAGEMENT SHAREHOLDERS' AGREEMENT
CONTINUATION OF COUNTERPART SIGNATURE PAGES
MANAGEMENT INVESTORS
IN WITNESS WHEREOF, the parties below have executed this Agreement as
of the first date set forth above.
/s/ Kevin L. Tate
------------------------------------
Name: Kevin L. Tate
MANAGEMENT SHAREHOLDERS' AGREEMENT
CONTINUATION OF COUNTERPART SIGNATURE PAGES
MANAGEMENT INVESTORS
IN WITNESS WHEREOF, the parties below have executed this Agreement as
of the first date set forth above.
/s/ William F. Schmidt
--------------------------------------
Name: William F. Schmidt
MANAGEMENT SHAREHOLDERS' AGREEMENT
CONTINUATION OF COUNTERPART SIGNATURE PAGES
MANAGEMENT INVESTORS
IN WITNESS WHEREOF, the parties below have executed this Agreement as
of the first date set forth above.
/s/ Robert Cohen
-------------------------------------
Name: Robert Cohen
MANAGEMENT SHAREHOLDERS' AGREEMENT
CONTINUATION OF COUNTERPART SIGNATURE PAGES
MANAGEMENT INVESTORS
IN WITNESS WHEREOF, the parties below have executed this Agreement as
of the first date set forth above.
/s/ Jonathan P. Ritz
------------------------------------------
Name: Jonathan P. Ritz
MANAGEMENT SHAREHOLDERS' AGREEMENT
CONTINUATION OF COUNTERPART SIGNATURE PAGES
MANAGEMENT INVESTORS
IN WITNESS WHEREOF, the parties below have executed this Agreement as
of the first date set forth above.
/s/ Jerry E. Hart
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Name: Jerry E. Hart
MANAGEMENT SHAREHOLDERS' AGREEMENT
CONTINUATION OF COUNTERPART SIGNATURE PAGES
MANAGEMENT INVESTORS
IN WITNESS WHEREOF, the parties below have executed this Agreement as
of the first date set forth above.
/s/ Richard S. March
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Name: Richard S. March
SCHEDULE I
MANAGEMENT INVESTORS
Cohen, Robert
Freudberg, Seth D.
Hart, Jerry
March, Richard S.
McCreesh, James B.
Ritz, Jonathan
Schmidt, William F.
Tate, Kevin L.