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Exhibit (d)(6)
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement") is dated as of
_______ __, 2000, by and among Calendar Holdings, Inc., a Delaware corporation
(the "Company"); Saw Mill Capital Fund II, L.P. ("Saw Mill"); [CHAIRMAN]
("[CHAIRMAN]"); [CHIEF EXECUTIVE OFFICER] ("[CHIEF EXECUTIVE OFFICER]"; and
collectively with [CHAIRMAN], the "Executives"); Chase Capital Investments, LLC
("Chase"); Massachusetts Mutual Life Insurance Company ("MassMutual"); and The
Northwestern Mutual Life Insurance Company ("Northwestern").
As of the date hereof, (i) Saw Mill and the Executives each
own a number of shares of the Company's Common Stock and (ii) Chase, MassMutual
and Northwestern each own warrants to purchase a number of shares of the
Company's Common Stock.
The Company and the Equityholders (as defined below) desire to
enter into this Agreement for the purposes, among others, of (i) establishing
the composition of the Board (as defined below), (ii) assuring continuity in the
management and ownership of the Company and (iii) limiting the manner and terms
by which the Equityholder Shares (as defined below) may be transferred.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. As used herein, the following terms shall have
the following meanings:
"Affiliate" means, when used with reference to a specified
Person, any Person that directly or indirectly controls or is controlled by or
is under common control with the specified Person. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and "under
common control with") shall mean either (i) possession, directly or indirectly,
of power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise) or (ii) the direct or indirect ownership of more than 5%
of the voting equity securities of such Person. With respect to any Person who
is an individual, "Affiliates" shall also include, without limitation, any
member of such individual's Family Group.
"Articles of Incorporation" means the Company's Articles of
Incorporation or Certificate of Incorporation, as the case may be, as in effect
from time to time.
"Board" means the Company's board of directors.
"Calendar" means [__________________], a Wisconsin corporation
and a wholly-owned Subsidiary of the Company.
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"CEO Employment Agreement" means the Employment Agreement,
dated as of the date hereof, between Calendar and Chief Executive Officer, as
may be amended from time to time.
"Chairman Employment Agreement" means the Employment
Agreement, dated as of the date hereof, between Calendar and Chairman, as may be
amended from time to time.
"Chase Warrant" means the warrant to purchase Common Shares
issued by the Company to Chase as of the date hereof, together with any warrants
issued after the date hereof in substitution or exchange for the Chase Warrant
in accordance with the provisions of the Chase Warrant.
"Common Shares" means collectively the shares of Common Stock
and the shares of any other equity of the Company hereafter authorized which is
not limited to a fixed sum or stated value in respect to the rights of the
holders thereof to participate in dividends or other distributions or in the
distribution of assets upon any liquidation, dissolution or winding up of the
Company.
"Common Stock" means the Company's common stock, par value
$0.01 per share.
"EBITDA" means [SHALL BE THE SAME DEFINITION AS USED IN THE
ARTICLES OF INCORPORATION WITH RESPECT TO THE SENIOR PREFERRED STOCK BOARD
RIGHTS].
"Estate Put Notice" has the meaning set forth in Section 13(c)
hereof.
"Estate Put Right" has the meaning set forth in Section 13(a)
hereof.
"Executive Put Notice" has the meaning set forth in Section
14(c) hereof.
"Executive Put Right" has the meaning set forth in Section
14(a) hereof.
"Executive Investor" means any Executive or any of his
Permitted Transferees.
"Executive Shares" means all Equityholder Shares issued or
issuable to any Executive Investor.
"Equityholder Shares" means (i) all Common Shares held,
directly or indirectly, by the Equityholders and (ii) all equity securities
issued or issuable directly or indirectly with respect to any Common Shares
referred to in clause (i) above by way of a stock dividend or other
distribution, or stock split, or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular shares constituting Equityholder Shares, such shares will cease to be
Equityholder Shares when they have been Transferred in a Public Sale. For all
purposes of this Agreement, (i) so long as all or any part of the Chase Warrants
remain outstanding and unexercised, the Common Shares issuable upon exercise of
the Chase Warrants shall be deemed issued and outstanding and shall be deemed
"Equityholder Shares", (ii) so long as all or any part of the MassMutual
Warrants remain outstanding and unexercised, the Common Shares issuable upon
exercise of the MassMutual Warrants shall be deemed issued and outstanding and
shall be deemed "Equityholder Shares", (iii) so long as all or any part of the
Northwestern Warrants
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remain outstanding and unexercised, the Common Shares issuable upon exercise of
the Northwestern Warrants shall be deemed issued and outstanding and shall be
deemed "Equityholder Shares", and (iv) if and so long as all or any part of the
Subordinated Debt Warrants are outstanding and unexercised, the Common Shares
issuable upon exercise of the Subordinated Debt Warrants shall be deemed issued
and outstanding and shall be deemed "Equityholder Shares".
"Equityholders" means collectively the Saw Mill Investors, the
Executive Investors and the Warrant Investors.
"Fair Market Value" per any Equityholder Share as of any given
date shall be as determined by the Board based on such factors as the members
thereof, in the exercise of their business judgment, consider relevant;
provided, that, with respect to any determination by the Board of "Fair Market
Value", if a Dispute Notice (as herein defined) is delivered to the Company
pursuant to Section 15 hereof, then, "Fair Market Value" per any Equityholder
Share as of such given date shall be as determined by the applicable Independent
Financial Expert (as herein defined) based on such factors as such Independent
Financial Expert, in the exercise of its business judgment, considers relevant.
"Family Group" means, with respect to any Person who is an
individual, (i) such Person's spouse, former spouse, descendants (whether
natural or adopted), parents and their descendants and any spouse of the
foregoing persons (collectively, "relatives"), (ii) the trustee, fiduciary or
personal representative of such Person and any trust solely for the benefit of
such Person and/or such Person's relatives or (iii) any limited partnership or
limited liability company the governing instruments of which provide that such
Person shall have the exclusive, nontransferable power to direct the management
and policies of such entity including, without limitation, voting and
disposition of investments and of which the sole owners of partnership
interests, membership interests or any other equity interests are, and will
remain, limited to such Person and such Person's relatives.
"Independent Director" means any member of the Board who is
neither (i) an employee, consultant or Affiliate of Saw Mill Capital L.L.C., or
any member of their respective Family Groups nor (ii) an Executive or any member
of an Executive's Family Group.
"MassMutual Warrant" means the warrant to purchase Common
Shares issued by the Company to MassMutual as of the date hereof, together with
any warrants issued after the date hereof in substitution or exchange for the
MassMutual Warrant in accordance with the provisions of the MassMutual Warrant.
"Northwestern Warrant" means the warrant to purchase Common
Shares issued by the Company to Northwestern as of the date hereof, together
with any warrants issued after the date hereof in substitution or exchange for
the Northwestern Warrant in accordance with the provisions of the Northwestern
Warrant.
"Permitted Transferee" has the meaning set forth in Section
5(c)(ii) hereof.
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"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, a governmental entity or any
department, agency or political subdivision thereof or any other entity or
organization.
"Preferred Stock Investor" means any of Chase, MassMutual,
Northwestern or any of their respective Permitted Transferees.
"Public Offering" means an underwritten public offering and
sale of Common Shares pursuant to an effective registration statement under the
Securities Act; provided that a Public Offering shall not include an offering
made in connection with a business acquisition or combination pursuant to a
registration statement on Form S-4 or any similar form, or an employee benefit
plan pursuant to a registration statement on Form S-8 or any similar form.
"Public Sale" means any sale of Equityholder Shares to the
public pursuant to an offering registered under the Securities Act or, after the
consummation of an initial Public Offering, to the public pursuant to the
provisions of Rule 144 (or any similar rule or rules then in effect) under the
Securities Act.
"Put Notice" means the Estate Put Notice or the Executive Put
Notice, as applicable.
"Put Right" means any of the Put Rights.
"Put Rights" means, collectively, the Estate Put Right and the
Executive Put Right.
"Qualified Public Offering" means any Public Offering, but
only if the aggregate gross proceeds received by the Company and/or its
equityholders (before the deduction of underwriting discounts and expenses) in
such Public Offering in the aggregate are in excess of $50 million.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, among the Company, Saw Mill, the
Executives, Chase, MassMutual, Northwestern and any other party named therein,
as may be amended from time to time.
"Repurchase Option" has the meaning set forth in Section 12(a)
hereof.
"Saw Mill Investor" means any of Saw Mill or any of its
Permitted Transferees.
"Saw Mill Majority Holders" means, at any time, the holder(s)
of record of a majority of the number of Saw Mill Shares then outstanding.
"Saw Mill Shares" means all Equityholder Shares issued or
issuable to any Saw Mill Investor.
"Saw Mill Supermajority Holders" means, at any time, the
holder(s) of record of at least 66-2/3% of the number of Saw Mill Shares then
outstanding.
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"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Preferred Stock" means the Company's Senior Redeemable
Exchangeable Preferred Stock.
"Senior Preferred Stock Board Rights" means the rights the
Company has granted in the Articles of Incorporation to certain holders of the
Senior Preferred Stock pursuant to which, under certain circumstances, such
holders shall have the right to designate two members of the Board.
"Subordinated Debt Warrants" means any warrants issued by the
Company to purchase Common Shares in connection with the issuance of [THE BRIDGE
LOANS AND/OR THE ISSUANCE OF ANY SUBORDINATED DEBT ISSUED TO REFINANCE SUCH
BRIDGE LOANS, IN EACH CASE,] by the Company or any of its Subsidiaries.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof, or (ii) if a
partnership, limited liability company, association or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by that Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in a
partnership, limited liability company, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, limited
liability company, association or other business entity gains or losses or shall
be or control the managing director, managing member, manager or a general
partner of such partnership, limited liability company, association or other
business entity.
"Total Debt" means [SHALL BE THE SAME DEFINITION AS USED IN
THE ARTICLES OF INCORPORATION WITH RESPECT TO THE SENIOR PREFERRED STOCK BOARD
RIGHTS].
"Transfer" means any voluntary or involuntary, direct or
indirect, sale, transfer, conveyance, assignment, pledge, hypothecation, gift,
delivery or other disposition. Notwithstanding the foregoing, the conversion by
any Equityholder of any shares of any class of Common Shares into any other
class of Common Shares shall not be deemed a "Transfer" for purposes of this
Agreement, provided that such Equityholder continues to own such converted
shares immediately after such conversion.
"Unaffiliated Third Party" means any Person who, immediately
prior to the contemplated transaction, (i) is not a Person who directly or
indirectly owns in excess of 5% of the outstanding Common Shares on a
fully-diluted basis (a "5% Owner"), (ii) is not controlling, controlled by or
under common control with any such 5% Owner, (iii) is not the spouse or
descendent (by birth or adoption) of any such 5% Owner or a trust for the
benefit of such 5% Owner
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and/or such other Persons, and (iv) is neither a portfolio company of any such
5% Owner nor a Subsidiary of any portfolio company of any such 5% Owner. As used
in this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall have the meaning given to
such term in the definition of "Affiliate".
"Valuation Date" shall mean (i) with respect to any Repurchase
Option, the date, if any, that the Company delivers a Repurchase Notice to the
applicable holder(s) of Executive Shares, (ii) with respect to any Estate Put
Right, the date, if any, that the applicable estate of an Executive delivers an
Estate Put Notice to the Company or (iii) with respect to any Executive Put
Right, the date, if any, that the Executive delivers an Executive Put Notice to
the Company.
"Warrant Investor" means any of Chase, MassMutual,
Northwestern, any original holder of a Subordinated Debt Warrant who becomes a
party to this Agreement pursuant to the terms of Section 16 hereof or any of
their respective Permitted Transferees.
"Warrant Investor Shares" means all Equityholder Shares issued
or issuable to any Warrant Investor.
2. Board of Directors.
(a) To the extent permitted by law, each Equityholder shall
vote all voting securities of the Company over which such Equityholder has
voting control, and shall take all other reasonably necessary or desirable
actions within such Equityholder's control (whether in such Equityholder's
capacity as an equityholder, director, member of a board committee or officer of
the Company or otherwise, and including, without limitation, attendance at
meetings in person or by proxy for purposes of obtaining a quorum and execution
of written consents in lieu of meetings), and the Company shall take all
necessary and desirable actions within its control (including, without
limitation, calling special board and equityholder or member meetings), so that:
(i) the authorized number of directors of the Board shall be
nine; provided, that at any time during which the applicable holders of
the Senior Preferred Stock have exercised the Senior Preferred Stock
Board Rights, the authorized number of directors of the Board shall be
eleven;
(ii) the Saw Mill Majority Holders will designate three
members of the Board (each a "Saw Mill Director");
(iii) holders of record of a majority of the number of
Executive Shares then outstanding will designate three members of the
Board (each an "Executive Director");
(iv) the Saw Mill Majority Holders will designate one
Independent Director (the "Saw Mill Independent Director"); provided,
that such designee must be approved by holders of record of a majority
of the number of Executive Shares then outstanding (which approval
shall not be unreasonably withheld or delayed);
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(v) the holders of record of a majority of the number of
Executive Shares then outstanding will designate one Independent
Director (the "Executive Independent Director"); provided, that any
such designee must be approved by the Saw Mill Majority Holders (which
approval shall not be unreasonably withheld or delayed);
(vi) in addition to the Saw Mill Independent Director and the
Executive Independent Director, one member of the Board shall be an
Independent Director (the "Other Independent Director"); provided, that
prior to any individual being elected to the Board as the Other
Independent Director, such individual must first be approved by the Saw
Mill Majority Holders and the holders of record of a majority of the
number of Executive Shares then outstanding, in each case, which
approval shall not be unreasonably withheld or delayed;
(vii) the Company is in compliance with any and all Senior
Preferred Stock Board Rights;
(viii) any director designated pursuant to clause (ii), (iii),
(iv) or (v) above shall be removed from the Board (with or without
cause) at the written request of the Equityholder or Equityholders
which have the right to designate such director hereunder, but only
upon such written request and under no other circumstances (in each
case, determined on the basis specified in clause (ii), (iii), (iv) or
(v) above, as the case may be);
(ix) in the event that any director designated hereunder for
any reason ceases to serve as a member of the Board during such
director's term of office, the resulting vacancy on the Board shall be
filled by a director designated in the manner provided in clause (ii),
(iii), (iv), (v) or (vi) above, as the case may be;
(x) if, within a reasonable period of time, any
Equityholder(s) entitled to designate any director position fail to
designate a representative to fill such director position pursuant to
the terms of this Section 2, and such failure shall continue for more
than 30 days after notice from the Company to such Equityholder(s) with
respect to such failure, the election of an individual to such director
position shall be accomplished in accordance with the Articles of
Incorporation, the Company's Bylaws and applicable law; provided that
such individual shall be removed from such director position if such
Equityholder(s) so direct; and
(xi) at the Board's election, the composition of the board of
directors (or any similar governing body) of any of the Company's
Subsidiaries shall be the same as the Board or otherwise as specified
by the Board.
(b) Chase Observer. So long as Chase and its Affiliates (and
not any of their respective assigns) own at least 50% of the number of
Equityholder Shares owned by Chase as of the date hereof (such number to be
appropriately adjusted for any stock split, reverse stock split, stock
distribution or dividend, or other subdivision of combination of Common Shares
after the date hereof), Chase and its Affiliates who own Equityholder Shares
(and not any of their respective assigns) shall appoint a representative (the
"Chase Observer"); provided that if the Chase Observer is not an employee of
Chase or any of its Affiliates, then such representative must be reasonably
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acceptable to the Board. Chase and its Affiliates who own Equityholder Shares
(and not any of their respective assigns) may remove any such representative or
appoint a new representative if a vacancy in such position occurs for any reason
by delivery of a written notice to the Secretary of the Company; provided that
if such new representative is not an employee of Chase or any of its Affiliates,
then such new representative must be reasonably acceptable to the Board. The
Company or the applicable members of the Board will give the Chase Observer oral
or written notice of each meeting of the Board (whether annual or special) at
the same time and in the same manner as oral or written notice is given to the
applicable members of the Board (which notice may be waived by the Chase
Observer). Notwithstanding the foregoing, if the Chase Observer attends (or, in
the case of a telephonic meeting, listens by telephone to) any such meeting of
the Board, then the Chase Observer shall be deemed to have had proper notice of
such meeting. Notwithstanding anything contained herein to the contrary, the
failure of the Chase Observer to be given notice of a meeting of the Board
pursuant to the immediately preceding two sentences or to attend such meeting
shall not in any way affect the authority of the Board to have, or to adopt
resolutions at, such meeting or the legitimacy of any actions taken by the Board
at such meeting. Subject to the foregoing, the Company will permit the Chase
Observer to attend (or, in the case of a telephonic meeting, to listen by
telephone to) each meeting of the Board as a non-voting observer. The Company
shall provide the Chase Observer all written materials and other information
(including copies of meeting minutes) given to the members of the Board in
connection with any such meeting at the same time as such information is
delivered to the members of the Board and, if the Chase Observer does not attend
(or, in the case of a telephonic meeting, does not listen by telephone to) a
meeting of the Board, the Chase Observer will be entitled, upon request, to
receive a written or oral summary of the meeting from the Secretary of the
Company. If the Company takes any action by written consent of the Board in lieu
of a meeting of the Board, then the Company shall provide to the Chase Observer
copies of all such draft written consents and related materials at the same time
and in the same manner as provided to the Board; provided that the failure of
the Company to provide such copies and/or related materials to the Chase
Observer shall not in any way affect the authority of the Board to take action
by such written consent or the legitimacy of any actions taken by such written
consent.
(c) MassMutual Observer. So long as MassMutual and its
Affiliates (and not any of their respective assigns) own at least 50% of the
number of Equityholder Shares owned by MassMutual as of the date hereof (such
number to be appropriately adjusted for any stock split, reverse stock split,
stock distribution or dividend, or other subdivision of combination of Common
Shares after the date hereof), MassMutual and its Affiliates who own
Equityholder Shares (and not any of their respective assigns) shall appoint a
representative (the "MassMutual Observer"); provided that if the MassMutual
Observer is not an employee of MassMutual or any of its Affiliates, then such
representative must be reasonably acceptable to the Board. MassMutual and its
Affiliates who own Equityholder Shares (and not any of their respective assigns)
may remove any such representative or appoint a new representative if a vacancy
in such position occurs for any reason by delivery of a written notice to the
Secretary of the Company; provided that if such new representative is not an
employee of MassMutual or any of its Affiliates, then such new representative
must be reasonably acceptable to the Board. The Company or the applicable
members of the Board will give the MassMutual Observer oral or written notice of
each meeting of the Board (whether annual or special) at the same time and in
the same manner as oral or written notice is given to the applicable members of
the Board (which notice may be waived by the MassMutual Observer).
Notwithstanding the foregoing, if the MassMutual Observer attends (or, in the
case of a telephonic meeting, listens by telephone to) any such meeting of the
Board, then the MassMutual Observer shall be deemed to have had proper notice of
such meeting. Notwithstanding anything contained herein to the contrary, the
failure of the MassMutual Observer to be given notice of a meeting of the Board
pursuant to the immediately preceding two sentences or to attend such meeting
shall not in any way affect the authority of the Board to have, or to adopt
resolutions at, such meeting or the legitimacy of any actions taken by the Board
at such meeting. Subject to the foregoing, the Company will permit the
MassMutual Observer to attend (or, in the case of a telephonic meeting, to
listen by
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telephone to) each meeting of the Board as a non-voting observer. The Company
shall provide the MassMutual Observer all written materials and other
information (including copies of meeting minutes) given to the members of the
Board in connection with any such meeting at the same time as such information
is delivered to the members of the Board and, if the MassMutual Observer does
not attend (or, in the case of a telephonic meeting, does not listen by
telephone to) a meeting of the Board, the MassMutual Observer will be entitled,
upon request, to receive a written or oral summary of the meeting from the
Secretary of the Company. If the Company takes any action by written consent of
the Board in lieu of a meeting of the Board, then the Company shall provide to
the MassMutual Observer copies of all such draft written consents and related
materials at the same time and in the same manner as provided to the Board;
provided that the failure of the Company to provide such copies and/or related
materials to the MassMutual Observer shall not in any way affect the authority
of the Board to take action by such written consent or the legitimacy of any
actions taken by such written consent.
(d) Northwestern Observer. So long as Northwestern and its
Affiliates (and not any of their respective assigns) own at least 50% of the
number of Equityholder Shares owned by Northwestern as of the date hereof (such
number to be appropriately adjusted for any stock split, reverse stock split,
stock distribution or dividend, or other subdivision of combination of Common
Shares after the date hereof), Northwestern and its Affiliates who own
Equityholder Shares (and not any of their respective assigns) shall appoint a
representative (the "Northwestern Observer"); provided that if the Northwestern
Observer is not an employee of Northwestern or any of its Affiliates, then such
representative must be reasonably acceptable to the Board. Northwestern and its
Affiliates who own Equityholder Shares (and not any of their respective assigns)
may remove any such representative or appoint a new representative if a vacancy
in such position occurs for any reason by delivery of a written notice to the
Secretary of the Company; provided that if such new representative is not an
employee of Northwestern or any of its Affiliates, then such new representative
must be reasonably acceptable to the Board. The Company or the applicable
members of the Board will give the Northwestern Observer oral or written notice
of each meeting of the Board (whether annual or special) at the same time and in
the same manner as oral or written notice is given to the applicable members of
the Board (which notice may be waived by the Northwestern Observer).
Notwithstanding the foregoing, if the Northwestern Observer attends (or, in the
case of a telephonic meeting, listens by telephone to) any such meeting of the
Board, then the Northwestern Observer shall be deemed to have had proper notice
of such meeting. Notwithstanding anything contained herein to the contrary, the
failure of the Northwestern Observer to be given notice of a meeting of the
Board pursuant to the immediately preceding two sentences or to attend such
meeting shall not in any way affect the authority of the Board to have, or to
adopt resolutions at, such meeting or the legitimacy of any actions taken by the
Board at such meeting. Subject to the foregoing, the Company will permit the
Northwestern Observer to attend (or, in the case of a telephonic meeting, to
listen by telephone to) each meeting of the Board as a non-voting observer. The
Company shall
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provide the Northwestern Observer all written materials and other information
(including copies of meeting minutes) given to the members of the Board in
connection with any such meeting at the same time as such information is
delivered to the members of the Board and, if the Northwestern Observer does not
attend (or, in the case of a telephonic meeting, does not listen by telephone
to) a meeting of the Board, the Northwestern Observer will be entitled, upon
request, to receive a written or oral summary of the meeting from the Secretary
of the Company. If the Company takes any action by written consent of the Board
in lieu of a meeting of the Board, then the Company shall provide to the
Northwestern Observer copies of all such draft written consents and related
materials at the same time and in the same manner as provided to the Board;
provided that the failure of the Company to provide such copies and/or related
materials to the Northwestern Observer shall not in any way affect the authority
of the Board to take action by such written consent or the legitimacy of any
actions taken by such written consent.
(e) The Company shall reimburse (i) the directors of the Board
for all reasonable out-of-pocket expenses incurred by such directors in
connection with the performance of their duties as directors of the Company and
in connection with their attendance of any meeting of the Board and (ii) the
Chase Observer, the MassMutual Observer and the Northwestern Observer for all
reasonable out-of-pocket expenses incurred by such individuals in connection
with their attendance of any meeting of the Board.
(f) In the event that, at any time, any provision of the
Articles of Incorporation or the Company's Bylaws is inconsistent with the
requirements of any provision of this Section 2, the Equityholders shall take
such action as may be necessary to amend any such provision in the Articles of
Incorporation or the Company's Bylaws, as the case may be, to conform with such
requirements.
3. Conflicting Agreements. Each Equityholder represents that
such Equityholder has not granted and is not a party to any proxy, voting trust
or other agreement which is inconsistent with or conflicts with the provisions
of this Agreement, and no holder of Equityholder Shares shall grant any proxy or
become party to any voting trust or other agreement which is inconsistent with
or conflicts with the provisions of this Agreement.
4. Restrictions. The Company shall not, unless it has received
the prior written consent of the Saw Mill Majority Holders:
(i) (x) incur, or permit any of its Subsidiaries to incur, any
indebtedness for borrowed money or purchase money indebtedness, other
than indebtedness for borrowed money and purchase money indebtedness of
the Company and its Subsidiaries in an amount not to exceed an
aggregate principal amount outstanding at any time on a consolidated
basis of $300 million, (y) refinance or amend the terms of, or permit
any of its Subsidiaries to refinance or amend the terms of, any
indebtedness for borrowed money or purchase money indebtedness in
excess of $5,000,000, or (z) incur, or permit any of its Subsidiaries
to incur, any indebtedness for borrowed money or purchase money
indebtedness, if immediately after such incurrence the ratio of Total
Debt to EBITDA would exceed 4.5x.
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(ii) acquire, or permit any of its Subsidiaries to acquire,
any interest in any Person or business (whether by a purchase of
assets, purchase of equity, merger or otherwise), or enter into any
joint venture, in each case, involving aggregate consideration
(including, without limitation, the assumption of liabilities whether
contingent, direct or indirect) exceeding $10,000,000;
(iii) sell or otherwise dispose of, or permit any of its
Subsidiaries to sell or otherwise dispose of, more than $5,000,000 of
the assets of the Company and its Subsidiaries computed on the basis of
the fair market value of such assets (whether by a sale of assets, sale
of equity, merger or otherwise) (other than sales of inventory and
obsolete or replaced equipment in the ordinary course of business) in
any transaction or series of related transactions during any fiscal
year;
(iv) merge or consolidate with or into any Person;
(v) liquidate, dissolve or effect a recapitalization or
reorganization in any form of transaction or permit Calendar to
liquidate, dissolve or effect a recapitalization or reorganization in
any form of transaction (including, without limitation, in each case,
any reorganization into a limited liability company, a partnership or
any other non-corporate entity which is treated as a partnership for
federal income tax purposes);
(vi) amend the Articles of Incorporation or the Company's
Bylaws, in each case, in any manner which would have an adverse effect
on any Saw Mill Investor in any material respect;
(vii) declare or pay any dividends or other distributions on
the Common Shares;
(viii) issue or voluntarily redeem any of the Company's
preferred stock;
(ix) (A) terminate the employment of or hire any chairman,
chief executive officer, chief operating officer, chief financial
officer, treasurer or division president of the Company or (B) permit
any Subsidiary of the Company to terminate the employment of or hire,
any senior manager of such Subsidiary who has the responsibilities of a
division president;
(x) issue or redeem any Equity Equivalents (as herein defined)
except for (i) the issuance of Equity Equivalents upon conversion or
exchange of any outstanding convertible or exchangeable securities,
(ii) the issuance of Equity Equivalents upon exercise of any
outstanding options or warrants, (iii) the redemption of all or any
part of the Chase Warrant, the MassMutual Warrant, the Northwestern
Warrant, any Subordinated Debt Warrants or any Equity Equivalents
issued pursuant to the exercise of any such Warrants, in each case,
pursuant to any contractual provision which obligates the Company to
make such redemption or (iv) the redemption of any Equity Equivalents
pursuant to the Put Rights (as herein defined) or from any current or
former employee of the Company or any of its Subsidiaries (other than
the Executives);
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(xi) permit any of the Company's Subsidiaries to issue any
equity securities to any Person other than the Company or any of the
Company's Subsidiaries;
(xii) prior to the consummation of a Qualified Public
Offering, file, or permit any of the Company's Subsidiaries to file,
any registration statement with the SEC with respect to the
registration of an offering or sale of any equity securities;
(xiii) make, or permit any of the Company's Subsidiaries to
make, capital expenditures in excess of $30 million, on a consolidated
basis, in any calendar year; or
(xiv) enter into, or permit any of the Company's Subsidiaries
to enter into, any material contract, transaction or other arrangement
with any Executive or any Affiliate of any Executive (other than the
Company or any of its Subsidiaries).
5. Restrictions on Transfer of Equityholder Shares.
(a) General Restrictions.
(i) Prior to the date five years after the date hereof, an
Executive Investor may Transfer Equityholder Shares only (A) in Public
Sales, (B) (x) if such Executive Investor has received the prior
written consent of the Saw Mill Majority Holders and if such Executive
Investor has complied with the terms and requirements of Section 5(b),
to the extent applicable, or (y) if such Executive Investor is
exercising a tag-along right granted to such Executive Investor
pursuant to Section 5(b), then to any Person, provided, that such
Person shall have complied with the requirements of Section 5(c)(ii),
(C) pursuant to an Approved Sale (as herein defined) or (D) to the
Company pursuant to a Put Right or a Repurchase Option.
(ii) On the date five years after the date hereof or at any
time thereafter, an Executive Investor may Transfer Equityholder Shares
only (A) in Public Sales, (B) if such Executive Investor has complied
with the terms and requirements of Section 5(b), to the extent
applicable, or if such Executive Investor is exercising a tag-along
right granted to such Executive Investor pursuant to Section 5(b), then
to any Person, provided, that such Person shall have complied with the
requirements of Section 5(c)(ii), (C) pursuant to an Approved Sale or
(D) to the Company pursuant to a Put Right or a Repurchase Option.
(iii) A Saw Mill Investor may Transfer Equityholder Shares
only (A) in Public Sales, (B) if such Saw Mill Investor has complied
with the terms and requirements of Section 5(b), to the extent
applicable, or if such Saw Mill Investor is exercising a tag-along
right granted to such Saw Mill Investor pursuant to Section 5(b), then
to any Person, provided, that such Person shall have complied with the
requirements of Section 5(c)(ii), (C) pursuant to an Approved Sale, or
(D) to any Executive Investor pursuant to the terms of Section 6.
(iv) A Warrant Investor may Transfer Equityholder Shares only
(A) in Public Sales, (B) to any Person, provided, that such Person
shall have complied with the
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requirements of Section 5(c)(ii), (C) pursuant to an Approved Sale, (D)
to any Executive Investor pursuant to the terms of Section 6 or (E) to
the Company.
(b) Tag Along Rights.
(i) Tag Along Rights in the event of certain Transfers by the
Executive Investors. Subject to Section 5(c)(i) and Section 15, at
least 10 business days prior to the Transfer by any Executive
Investor(s) (collectively, the "Executive Transferring Equityholder")
of any Equityholder Shares to any Person (other than pursuant to a
Public Offering; pursuant to an Approved Sale; a Transfer to the
Company pursuant to a Put Right or a Repurchase Option; or in
connection with the exercise of a tag-along right granted to such
Executive Investor(s) pursuant to Section 5(b)(ii)), the Executive
Transferring Equityholder shall deliver a written notice (the
"Executive Sale Notice") to each Saw Mill Investor and each Warrant
Investor (collectively, the "Other Investors"), specifying in
reasonable detail the identity of the prospective transferee(s), the
type and the number of the Equityholder Shares to be Transferred, and
the other material terms and conditions of such contemplated Transfer.
Any Other Investor may elect to participate in such contemplated
Transfer by delivering written notice to the Executive Transferring
Equityholder within 10 business days after its receipt of the Executive
Sale Notice. If any Other Investor elects to participate in such
Transfer, each Other Investor who elects to participate (the "Tagging
Investors", and collectively with the Executive Transferring
Equityholder, the "Participating Equityholders") shall be entitled to
sell in such contemplated Transfer, at the same price and on the same
terms, up to a number of Equityholder Shares to be Transferred equal to
the product of (x) the quotient determined by dividing the percentage
of Equityholder Shares owned by such Tagging Investor by the aggregate
percentage of Equityholder Shares owned collectively by all of the
Equityholders participating in such contemplated Transfer (including
the Executive Transferring Equityholder) and (y) the aggregate number
of Equityholder Shares to be sold in such contemplated Transfer. Each
Equityholder Transferring Equityholder Shares pursuant to this Section
5(b)(i) shall pay its pro rata share (based on the amount of
consideration received) of the reasonable out-of-pocket expenses
incurred by the Equityholders in connection with such Transfer and
shall take all reasonably necessary and desirable actions as reasonably
directed by the Executive Transferring Equityholder in connection with
the consummation of such Transfer, including without limitation
executing the applicable purchase agreement. The Executive Transferring
Equityholder shall cause all applicable transferee(s) to execute a
joinder to this Agreement with respect to all Equityholder Shares
Transferred pursuant to this Section 5(b)(i). Any Transfer made by an
Executive Transferring Equityholder pursuant to this Section 5(b)(i)
shall satisfy the following conditions: (A) upon the consummation of
such Transfer, each Participating Equityholder will be entitled to
receive the same form and amount (on a share-for-share basis) of
consideration, with respect to the Equityholder Shares sold in such
Transfer and (B) if any holder of Equityholder Shares is given the
option as to the form and amount of consideration to be received in
connection with such Transfer, then each holder of Equityholder Shares
shall be given the same option. Notwithstanding anything contained
herein to the contrary, the term "consideration" as used in this
Section 5(b)(i) shall not include any closing fees received by any Saw
Mill Investor or any Affiliate of any Saw Mill Investor in connection
with a Transfer pursuant to this Section 5(b)(i) and shall not include
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any salary, bonuses or other form of compensation (whether incentive or
otherwise) received by any Executive in connection with a Transfer
pursuant to this Section 5(b)(i). All terms defined in this Section
5(b)(i) shall be for purposes of this Section 5(b)(i) only.
(ii) Tag Along Rights in the event of certain Transfers by the
Saw Mill Investors. Subject to Section 5(c)(i), at least 10 business
days prior to the Transfer by any Saw Mill Investor(s) (collectively,
the "Saw Mill Transferring Equityholder") of any Equityholder Shares to
any Person (other than pursuant to a Public Offering; pursuant to an
Approved Sale; in connection with the exercise of a tag-along right
granted to such Saw Mill Investor(s) pursuant to Section 5(b)(i); or in
connection with a Transfer to any Executive Investor pursuant to
Section 6), the Saw Mill Transferring Equityholder shall deliver a
written notice (the "Saw Mill Sale Notice") to each Executive Investor
and each Warrant Investor (collectively, the "Other Investors"),
specifying in reasonable detail the identity of the prospective
transferee(s), the type and the number of the Equityholder Shares to be
Transferred, and the other material terms and conditions of such
contemplated Transfer. Any Other Investor may elect to participate in
such contemplated Transfer by delivering written notice to the Saw Mill
Transferring Equityholder within 10 business days after its receipt of
the Saw Mill Sale Notice. If any Other Investor elects to participate
in such Transfer, each Other Investor who elects to participate (the
"Tagging Investors", and collectively with the Saw Mill Transferring
Equityholder, the "Participating Equityholders") shall be entitled to
sell in such contemplated Transfer, at the same price and on the same
terms, up to a number of Equityholder Shares to be Transferred equal to
the product of (x) the quotient determined by dividing the percentage
of Equityholder Shares owned by such Tagging Investor by the aggregate
percentage of Equityholder Shares owned collectively by all of the
Equityholders participating in such contemplated Transfer (including
the Saw Mill Transferring Equityholder) and (y) the aggregate number of
Equityholder Shares to be sold in such contemplated Transfer. Each
Equityholder Transferring Equityholder Shares pursuant to this Section
5(b)(ii) shall pay its pro rata share (based on the amount of
consideration received) of the reasonable out-of-pocket expenses
incurred by the Equityholders in connection with such Transfer and
shall take all reasonably necessary and desirable actions as reasonably
directed by the Saw Mill Transferring Equityholder in connection with
the consummation of such Transfer, including without limitation
executing the applicable purchase agreement. The Saw Mill Transferring
Equityholder shall cause all applicable transferee(s) to execute a
joinder to this Agreement with respect to all Equityholder Shares
Transferred pursuant to this Section 5(b)(ii). Any Transfer made by a
Saw Mill Transferring Equityholder pursuant to this Section 5(b)(ii)
shall satisfy the following conditions: (A) upon the consummation of
such Transfer, each Participating Equityholder will be entitled to
receive the same form and amount (on a share-for-share basis) of
consideration, with respect to the Equityholder Shares sold in such
Transfer and (B) if any holder of Equityholder Shares is given the
option as to the form and amount of consideration to be received in
connection with such Transfer, then each holder of Equityholder Shares
shall be given the same option. Notwithstanding anything contained
herein to the contrary, the term "consideration" as used in this
Section 5(b)(ii) shall not include any closing fees received by any Saw
Mill Investor or any Affiliate of any Saw Mill Investor in connection
with a Transfer pursuant to this Section 5(b)(ii) and shall not include
any salary, bonuses or other form of compensation (whether incentive or
otherwise) received by any Executive in connection with a Transfer
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pursuant to this Section 5(b)(ii). All terms defined in this Section
5(b)(ii) shall be for purposes of this Section 5(b)(ii) only.
(iii) The provisions of this Section 5(b) shall terminate upon
the consummation of a Qualified Public Offering.
(c) Permitted Transfers.
(i) The restrictions contained in Sections 5(a) and 5(b) shall
not apply with respect to any Transfer of Equityholder Shares by any
Equityholder (A) in the case of an individual Equityholder, (x) to any
member of such Equityholder's Family Group but only if such Transfer is
for valid estate planning purposes or (y) pursuant to applicable laws
of descent and distribution, (B) in the case of a non-individual
Equityholder, to its Affiliates or (C) in the case of Saw Mill, in a
distribution to its partners; provided, in each case, that any such
transferee(s) shall have complied with the requirements of Section
5(c)(ii).
(ii) Prior to any proposed transferee's acquisition of
Equityholder Shares pursuant to a Transfer permitted by Sections
5(a)(i)(B), 5(a)(ii)(B), 5(a)(iii)(B) or 5(a)(iv)(B) or Section
5(c)(i), such proposed transferee must agree to take such Equityholder
Shares subject to and to be fully bound by the terms of this Agreement
applicable to such Equityholder Shares by executing a joinder to this
Agreement substantially in the form attached hereto as Exhibit A and
delivering such executed joinder to the Secretary of the Company prior
to the effectiveness of such Transfer (unless such Transfer is pursuant
to applicable laws of descent and distribution, in which case, such
executed joinder shall be delivered to the Secretary of the Company as
soon as reasonably possible after such Transfer). All transferees
acquiring Equityholder Shares and executing a joinder in compliance
with this Section 5(c)(ii) are collectively referred to herein as
"Permitted Transferees".
(d) If any Equityholder Transfers Equityholder Shares to an
Affiliate and an event occurs which causes such Affiliate to cease to be an
Affiliate of such Equityholder unless, prior to such event, such Affiliate
Transfers such Equityholder Shares back to such Equityholder, then such event
shall be deemed a Transfer of Equityholder Shares subject to all of the
restrictions on Transfers of Equityholder Shares set forth in this Agreement,
including without limitation, this Section 5.
6. Right of First Offer Granted to the Executive Investors.
(a) If at any time after the date five years after the date
hereof, the Saw Mill Supermajority Holders propose to use their efforts to
effect an Approved Sale (as herein defined) without the approval of holders of
at least 66-2/3% of the number of then outstanding Equityholders Shares, then
the Saw Mill Supermajority Holders will, prior to effecting such Approved Sale,
give notice (the "Proposed Approved Sale Notice") on behalf of all Saw Mill
Investors and all Warrant Investors (collectively, the "Financial Holders") to
the Executive Investors, which notice shall state that the Saw Mill
Supermajority Holders desire to use their efforts to effect an Approved Sale.
Each Financial Holder hereby agrees that the Saw Mill Supermajority Holders have
the authority to give the Proposed Approved Sale Notice and to give an
Acceptance Notice (as herein defined) on their behalf.
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(b) At any time within ninety (90) days after delivery of the
Proposed Approved Sale Notice (the "Exercise Period") the holders of record of a
majority of the number of Executive Shares then outstanding (collectively, the
"Offering Executive Investor") may notify the Financial Holders in writing of
their offer (the "Offer") to purchase all (and not less than all) of the Saw
Mill Shares and the Warrant Investor Shares (collectively, the "Offered Shares")
and the price (the "Offered Price") and the other terms upon which such Offering
Executive Investor proposes to purchase such Offered Shares (such offer must be
solely for cash) (the "Offer Notice"). A proposed Offer Notice shall be valid
only if such notice contains firm and enforceable commitments from reputable
sources for the financing of the Offering Executive Investor's proposed purchase
of the Offering Shares; provided that if the Saw Mill Supermajority Holders
validly deliver an Acceptance Notice in response to any proposed Offer Notice,
then such proposed Offer Notice shall be deemed to be a valid Offer Notice. The
Offer Notice will constitute an irrevocable offer by the Offering Executive
Investor to acquire the Offered Shares from the Financial Holders at the Offered
Price and on the terms specified in the Offer Notice.
(c) If an Offer Notice has been delivered to the Financial
Holders during the applicable Exercise Period, then, at any time during the
60-day period commencing on the date the Saw Mill Supermajority Holders receive
such Offer Notice, the Saw Mill Supermajority Holders may, on behalf of the
Financial Holders, deliver notice to the Offering Executive Investor accepting
the applicable offer (the "Acceptance Notice").
(d) If the Saw Mill Supermajority Holders have not delivered
an Acceptance Notice pursuant to Section 6(c), then at any time during the
one-year period commencing upon the expiration of the applicable Exercise
Period,
(i) if a valid Offer Notice has been delivered to the
Financial Holders during the applicable Exercise Period, then the Saw
Mill Supermajority Holders may effect an Approved Sale (in which case
the Company and the Executives agree to use their respective best
efforts to assist the Saw Mill Supermajority Holders in effecting such
Approved Sale), but only at a price for the Common Shares which is
greater than the price specified in such valid Offer Notice, or
(ii) if a valid Offer Notice has not been delivered to the
Financial Holders during the applicable Exercise Period, then the Saw
Mill Supermajority Holders may effect an Approved Sale (in which case
the Company and the Executives agree to use their respective best
efforts to assist the Saw Mill Supermajority Holders in effecting such
Approved Sale).
(e) Upon the delivery of an Acceptance Notice to the Offering
Executive Investor, the Offering Executive Investor and the Financial Holders
shall be firmly bound to consummate the purchase and sale of the Offered Shares
in accordance with the terms hereof and the applicable Offer Notice and
Acceptance Notice. Subject to the provisions hereof, within sixty (60) days
after the Offering Executive Investor's receipt of the applicable Acceptance
Notice, the Offering Executive Investor shall purchase and the Financial Holders
shall sell all of the Offered Shares at a mutually agreeable time and place (the
"Offered Shares Closing").
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(f) At the Offered Shares Closing, the Financial Holders shall
deliver to the Offering Executive Investor certificates or instruments
representing the Offered Shares to be purchased by the Offering Executive
Investor, duly endorsed, and the Offering Executive Investor shall deliver to
the Financial Holders the Offered Price by wire transfer of immediately
available funds to an account designated by such Financial Holders.
(g) The provisions of this Section 6 shall terminate (i) upon
the consummation of an Qualified Public Offering or (ii) if any Offer by an
Offering Executive Investor is accepted pursuant to an Acceptance Notice and the
applicable Offered Shares Closing does not occur within sixty (60) days after
such Offering Executive Investor's receipt of the applicable Acceptance Notice
(provided that the termination of this Section 6 shall not relieve any
Equityholder from any liability for any breach of any provisions of this Section
6, any Offer Notice and/or any Acceptance Notice prior to such termination).
7. Approved Sale.
(a) If Approving Equityholders (as herein defined) approve a
sale of all or substantially all of the Company's assets determined on a
consolidated basis or a sale of all (or, for accounting, tax or other reasons,
substantially all) of the Common Shares (in either case, whether by merger,
recapitalization, consolidation, reorganization, combination or otherwise) or
any other transaction which has substantially the same effect as any of the
foregoing to an Unaffiliated Third Party or group of Unaffiliated Third Parties
(each such sale or transaction, an "Approved Sale"), then each holder of
Equityholder Shares will vote for, consent to and raise no objections against
such Approved Sale subject to the terms set forth below. If the Approved Sale is
structured as (i) a merger or consolidation, each holder of Equityholder Shares
will waive any dissenters' rights, appraisal rights or similar rights in
connection with such merger or consolidation or (ii) a sale of stock, each
holder of Equityholder Shares will agree to sell all of its Equityholder Shares
and rights to acquire Equityholder Shares on the same terms and conditions
(subject to the proviso below) as applicable to all of the Equityholder Shares
held by the Approving Equityholders. Each holder of Equityholder Shares will
take all reasonably necessary or desirable actions in connection with the
consummation of the Approved Sale as reasonably requested by the Approving
Equityholders including without limitation (but subject to Section 7(c))
executing any applicable purchase agreement and, if necessary, exercising any
outstanding options or warrants held by such holder of Equityholder Shares;
provided, that, notwithstanding the foregoing, no Equityholder may be required
to be jointly or jointly and severally liable for any indemnification
obligations provided by the Equityholders in connection with any Approved Sale
and no Equityholder may be liable as a result of any such indemnification
obligations for more than the net proceeds actually received by such
Equityholder as consideration for the Equityholder Shares it sold in such
Approved Sale.
(b) Each Equityholder will bear their pro-rata share (based
upon the amount of consideration received) of the reasonable out-of-pocket costs
of any sale of Equityholder Shares pursuant to an Approved Sale to the extent
such costs are incurred for the benefit of all holders of Equityholder Shares
and are not otherwise paid by the Company or the acquiring party. Costs incurred
by any Equityholder on their own behalf will not be considered costs of the
transaction hereunder.
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(c) The obligations of the Equityholders with respect to any
Approved Sale are subject to the satisfaction of the following conditions: (i)
in connection with the consummation of such Approved Sale, each Equityholder
will be entitled to receive the same form and amount (on a share-for-share
basis) of consideration with respect to each Equityholder Share sold in such
Approved Sale, (ii) if any holder of Equityholder Shares is given the option as
to the form and amount of consideration to be received in connection with such
Approved Sale, then each holder of Equityholder Shares shall be given the same
option and (iii) the receipt of all the material regulatory approvals which are
necessary in connection with the consummation of such Approved Sale.
Notwithstanding anything contained herein to the contrary, the term
"consideration" as used in this Section 7 shall not include any closing fees
received by any Saw Mill Investor or any Affiliate of any Saw Mill Investor in
connection with an Approved Sale and shall not include any salary, bonuses or
other form of compensation (whether incentive or otherwise) received by any
Executive in connection with an Approved Sale.
(d) For purposes of this Section 7, the term "Approving
Equityholders" means either (i) the holders of at least 66-2/3% of the number of
outstanding Equityholders Shares or (ii) at any time after the date five years
after the date hereof, the Saw Mill Supermajority Holders, but only if the Saw
Mill Supermajority Holders have complied with the provisions of Section 6 hereof
to the extent such Section 6 has not been previously terminated.
8. Financial Statements and Access to Information.
(a) Financial Statements. Prior to the consummation of a
Qualified Public Offering, the Company shall deliver to each Equityholder who
holds more than 5% of the then outstanding number of Common Shares:
(i) within sixty (60) days after the end of each
quarterly accounting period in each fiscal year of the Company, unaudited
consolidated statements of income and cash flows of the Company and its
Subsidiaries for such quarterly period and unaudited consolidated balance sheets
of the Company and its Subsidiaries as of the end of such quarterly period. Such
financial statements shall be prepared, in all material respects, in accordance
with generally accepted accounting principles, consistently applied, subject to
the absence of footnote disclosures and to normal year-end adjustments; and
(ii) within 120 days after the end of each fiscal
year of the Company, audited consolidated statements of income and cash flows of
the Company and its Subsidiaries for such fiscal year, and audited consolidated
balance sheets of the Company and its Subsidiaries as of the end of such fiscal
year. Such financial statement shall be prepared, in all material respects, in
accordance with generally accepted accounting principles, consistently applied.
(b) Access to Information. The Company shall permit any
Equityholder who is an original party to this Agreement and who holds more than
1% of the then outstanding number of Common Shares, any Equityholder who holds
more than 5% of the then outstanding number of Common Shares and their
respective representatives (including, without limitation, their respective
legal counsel, accountants and governmental authorities to which it is subject),
during normal business hours and such other times as any such holder may
reasonably request, to (i) visit
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and inspect any of the properties of the Company and its Subsidiaries, (ii)
examine the corporate and financial records of the Company and its Subsidiaries
and make copies thereof or extracts therefrom and (iii) discuss the affairs,
finances and accounts of any such entities with any of the executive officers of
the Company.
9. Legend.
(a) Each certificate or instrument evidencing Equityholder
Shares and each certificate or instrument issued in exchange for or upon the
Transfer of any Equityholder Shares (if such securities remain Equityholder
Shares (as defined herein) after such Transfer) shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN
EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS
AGREEMENT DATED AS OF __________ __, 2000, AS MAY BE AMENDED
FROM TIME TO TIME, BY AND AMONG THE ISSUER AND CERTAIN OF THE
ISSUER'S STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT
WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER
HEREOF UPON WRITTEN REQUEST."
The legend set forth above shall be removed from the certificates evidencing any
securities which cease to be Equityholder Shares. Upon the request of any holder
of Equityholder Shares, the Company shall remove the Securities Act portion of
the legend set forth above from the certificate or certificates for such
Equityholder Shares; provided, that such Equityholder Shares are eligible for
sale pursuant to Rule 144(k) (or any similar rule or rules then in effect) under
the Securities Act.
(b) Unless waived by the Company, no Equityholder may Transfer
any Equityholder Shares (except pursuant to an effective registration statement
under the Securities Act) without first delivering to the Company an opinion of
counsel reasonably acceptable in form and substance to the Company (which
counsel will be reasonably acceptable to the Company) that registration under
the Securities Act is not required in connection with such Transfer. If such
opinion of counsel reasonably acceptable in form and substance to the Company
further states that no subsequent Transfer of such Equityholder Shares will
require registration under the Securities Act, the Company will promptly upon
such Transfer deliver new certificates for such securities which do not bear the
Securities Act portion of the legend set forth in Section 9(a).
10. Transfers in Violation of Agreement. Any Transfer or
attempted Transfer of any Equityholder Shares in violation of any provision of
this Agreement shall be null and void, and
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the Company shall not record such Transfer on its books or treat any purported
transferee of such Equityholder Shares as the owner of such securities for any
purpose.
11. Preemptive Rights.
(a) If at any time prior to the consummation of a Qualified
Public Offering the Company wishes to issue any Common Shares or any options,
warrants or other rights to acquire Common Shares or any notes or other
securities convertible or exchangeable into Common Shares (all such Common
Shares and other rights and securities, collectively, the "Equity Equivalents")
to any Person or Persons, the Company shall promptly deliver a notice of
intention to sell (the "Company's Notice of Intention to Sell") to each Saw Mill
Investor, Executive Investor and Preferred Stock Investor (collectively, the
"Equity Investors") setting forth a description and the number of the Equity
Equivalents and any other securities proposed to be issued and the proposed
purchase price and terms of sale. Upon receipt of the Company's Notice of
Intention to Sell, each Equity Investor shall have the right to elect to
purchase, at the price and on the terms stated in the Company's Notice of
Intention to Sell, a number of the Equity Equivalents equal to the product of
(i) such Equity Investor's proportionate ownership of the then outstanding
number of Common Shares (calculated on a fully-diluted basis assuming all
holders of then outstanding warrants, options and convertible securities of the
Company which are in the money had converted such convertible securities or
exercised such warrants or options immediately prior to the taking of the record
of the holders of Common Shares for the purpose of determining whether they are
entitled to receive such offer) held by all Persons multiplied by (ii) the
number of Equity Equivalents proposed to be issued (as described in the
applicable Company's Notice of Intention to Sell). Notwithstanding anything
contained herein to the contrary, if the Company is issuing Equity Equivalents
in connection with the issuance of any debt or other equity securities of the
Company or any of its Subsidiaries, then any Equity Investor who elects to
purchase such Equity Equivalents pursuant to this Section 11 must also purchase
a corresponding proportion of such other debt or equity securities, all at the
proposed purchase price and on terms of sale as specified in the applicable
Company's Notice of Intention to Sell. Such election shall be made by the
electing Equity Investor by written notice to the Company within fifteen (15)
business days after receipt by such Equity Investor of the Company's Notice of
Intention to Sell (the "Acceptance Period"). In the event that any Equity
Equivalents or such other debt or equity securities proposed to be issued at any
time as contemplated by this Section 11 are either voting securities or
securities which are convertible, exercisable or exchangeable for voting
securities and for any reason one or more of the Equity Investors determines in
its sole discretion that it would be detrimental to such Equity Investor or its
Affiliates to purchase such Equity Equivalents or such other debt or equity
securities as provided hereby, then the Company shall make available to any such
Equity Investor an amount of alternative securities equal to the amount of such
Equity Equivalents or such other debt or equity securities as such Equity
Investor has elected to purchase pursuant to the terms hereof which are
identical to such Equity Equivalents or such other debt or equity securities in
all respects except for the fact that such alternate securities shall be
non-voting securities or convertible, exercisable or otherwise exchangeable for
non-voting securities (the "Alternative Securities") upon such terms and
conditions as such Equity Investor may request.
(b) To the extent an effective election to purchase has not
been received from an Equity Investor pursuant to subsection (a) above in
respect of the Equity Equivalents proposed to be issued pursuant to the
applicable Company's Notice of Intention to Sell, the Company may, at its
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election, during a period of one hundred and eighty (180) days following the
expiration of the applicable Acceptance Period, issue and sell the remaining
Equity Equivalents to be issued and sold to any Person at a price and upon terms
not more favorable to such Person than those stated in the applicable Company's
Notice of Intention to Sell. In the event the Company has not sold any Equity
Equivalents covered by a Company's Notice of Intention to Sell within such one
hundred and eighty (180) day period, the Company shall not thereafter issue or
sell such Equity Equivalents, without first offering such Equity Equivalents to
each Equity Investor in the manner provided in this Section 11; provided,
however, that failure by an Equity Investor to exercise its option to purchase
with respect to one issuance and sale of Equity Equivalents shall not affect its
option to purchase Equity Equivalents in any subsequent offering, sale and
purchase.
(c) If an Equity Investor gives the Company notice, pursuant
to the provisions of this Section 11, that such Equity Investor desires to
purchase any Equity Equivalents or Alternative Securities, payment therefor
shall be by check or wire transfer of immediately available funds, against
delivery of the securities (which securities shall be issued free and clear of
any liens or encumbrances) at the executive offices of the Company no later than
the last closing date fixed by the Company for the sale of the applicable Equity
Equivalents, which last closing date shall be no earlier than fifteen (15)
business days after the Company delivers the applicable Company's Notice of
Intention to Sell. In the event that any proposed sale is for a consideration
other than cash, such Equity Investor may pay cash in lieu of all (but not part)
of such other consideration, in the amount determined reasonably and in good
faith by the Board to represent the fair value of such consideration other than
cash.
(d) The preemptive rights contained in this Section 11 shall
not apply to (i) the issuance of Equity Equivalents as a stock dividend or other
distribution or upon any subdivision, split or combination of the outstanding
Common Shares; (ii) the issuance of Equity Equivalents upon conversion, exchange
or redemption of any outstanding convertible or exchangeable securities; (iii)
the issuance of Equity Equivalents upon exercise of any outstanding options or
warrants; (iv) the issuance of Equity Equivalents to any employee (other than an
Executive) of the Company or any of its Subsidiaries or to any Independent
Director; (v) the issuance to any Executive of options to acquire up to a
maximum of 1% of the outstanding Common Shares at the time of such issuance;
(vi) the issuance or exercise of any Subordinated Debt Warrants; (vii) the
issuance of Equity Equivalents as consideration (whether partial or otherwise)
for the purchase by the Company or any of its Subsidiaries of assets
constituting a business unit or of the stock or other equity securities of any
Person or Persons or (viii) the issuance of Equity Equivalents pursuant to a
Qualified Public Offering.
(e) The provisions of this Section 11 shall terminate upon the
consummation of a Qualified Public Offering.
12. Right to Repurchase Executive Shares.
(a) Repurchase Option. Upon the death of any Executive, the
Company shall have the option (but not the obligation) (the "Repurchase Option")
to purchase any or all of the Executive Shares then owned by such Executive's
estate or any member of such Executive's Family Group pursuant to the terms and
conditions set forth in this Section 12.
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(b) Repurchase Price. Executive Shares purchased pursuant to
the Repurchase Option will be purchased at a price equal to the Fair Market
Value of such Executive Shares as of the Valuation Date, less the amount of any
cash distributed by the Company with respect to such Executive Shares between
the Valuation Date and the closing of such repurchase.
(c) Repurchase Procedures. The Repurchase Option is
exercisable by the Company delivering written notice (the "Repurchase Notice")
to the holder or holders of the applicable Executive Shares to be repurchased
during the 180 day period beginning on the date of the applicable Executive's
death. The Repurchase Notice will set forth the number of Executive Shares to be
acquired from such holder(s) and shall include the applicable Board Valuation
Notice (as herein defined). If the applicable Executive Shares are held by more
than one Person, the Company will purchase such Executive Shares elected to be
purchased from such Persons, pro rata according to the number of Executive
Shares held by such Persons at the time of delivery of such Repurchase Notice
(determined as nearly as practicable to the nearest share).
(d) Closing. The closing of any such repurchase transaction
will take place on the date designated by the Company, which date will not be
more than sixty (60) days after the date the Fair Market Value of the applicable
Executive Shares is finally determined pursuant to the terms of this Agreement
(including Section 15 hereof). The Company will pay for any Executive Shares to
be purchased by the Company pursuant to the Repurchase Option by delivery of a
check(s) payable or by wire transfer of immediately available funds to the
holder(s) of such Executive Shares in an aggregate amount equal to the
applicable repurchase price for such Executive Shares. Notwithstanding anything
to the contrary contained in this Agreement, all repurchases of Executive Shares
by the Company will be subject to applicable restrictions contained in
applicable law (including the Wisconsin Business Corporation Law) and in the
Company's and its Subsidiaries' debt and equity financing agreements. If any
such restrictions prohibit the repurchase of Executive Shares which the Company
is entitled to make pursuant to this Section 12 or if such repurchase would
cause a default under any of the Company's and/or its Subsidiaries' debt and/or
equity financing agreements, the Company may make such repurchases as soon as
(i) it is permitted to do so under such restrictions and (ii) such repurchase
would not cause such a default. The Company will receive customary
representations and warranties from each seller regarding the sale of Executive
Shares, including, but not limited to, the representation that such seller has
good and marketable title to the Executive Shares to be transferred free and
clear of all liens, claims and other encumbrances.
13. Right to Put Executive Shares upon Death of Executive.
(a) Estate Put Right. Upon the death of any Executive, such
Executive's estate shall have the right (the "Estate Put Right") to require the
Company to purchase all of the Executive Shares then owned by such Executive's
estate or any member of such Executive's Family Group pursuant to the terms and
conditions set forth in this Section 13.
(b) Put Price. Executive Shares purchased pursuant to the
Estate Put Right will be purchased at a price equal to the Fair Market Value of
such Executive Shares as of the Valuation Date, less the amount of any cash
distributed by the Company with respect to such Executive Shares between the
Valuation Date and the closing of such repurchase.
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(c) Put Procedures. The Estate Put Right is exercisable by the
applicable Executive's estate delivering written notice (the "Estate Put
Notice") to the Company during the 180 day period beginning on the date of such
Executive's death. The Estate Put Notice will set forth the number of Executive
Shares to be sold to the Company and the holders of such Executive Shares.
(d) Closing. The closing of any transaction contemplated by
this Section 13 will take place on the date designated by the Company which date
will not be more than sixty (60) days after the date the Fair Market Value of
the applicable Executive Shares is finally determined pursuant to the terms of
this Agreement (including Section 15 hereof). The Company will pay for any
Executive Shares to be purchased by the Company pursuant to any Estate Put Right
by delivery of a check(s) payable or by wire transfer of immediately available
funds to the holder(s) of such Executive Shares in an aggregate amount equal to
the applicable repurchase price for such Executive Shares. Notwithstanding
anything to the contrary contained in this Agreement, all repurchases of
Executive Shares by the Company will be subject to applicable restrictions
contained in applicable law (including the Wisconsin Business Corporation Law)
and in the Company's and its Subsidiaries' debt and equity financing agreements.
If any such restrictions prohibit the repurchase of Executive Shares which the
Company is otherwise required to make pursuant to this Section 13 or if such
repurchase would cause a default under any of the Company's and/or its
Subsidiaries' debt and/or equity financing agreements, the Company shall make
such repurchases as soon as (i) it is permitted to do so under such restrictions
and (ii) such repurchase would not cause such a default. The Company will
receive customary representations and warranties from each seller regarding the
sale of Executive Shares, including, but not limited to, the representation that
such seller has good and marketable title to the Executive Shares to be
transferred free and clear of all liens, claims and other encumbrances.
(e) Termination. The provisions of this Section 13 shall
terminate upon the consummation of a Qualified Public Offering.
14. Right to Put Executive Shares upon Termination without
Cause or Permanent Total Disability of Executive.
(a) Executive Put Right. If at any time any Executive ceases
to be employed by Calendar as a result of (x) the termination by the Board or
Calendar of such Executive's employment by Calendar without Cause (in the case
of Chief Executive Officer, as such term is defined in the CEO Employment
Agreement, or in the case of Chairman, as such term is defined in the Chairman
Employment Agreement) or (y) such Executive's Permanent Total Disability (in the
case of Chief Executive Officer, as such term is defined in the CEO Employment
Agreement, or in the case of Chairman, as such term is defined in the Chairman
Employment Agreement), then, such Executive shall have the right (the "Executive
Put Right") to require the Company to purchase up to 20% of the Executive Shares
then owned by such Executive or any member of such Executive's Family Group
pursuant to the terms and conditions set forth in this Section 14.
(b) Put Price. Executive Shares purchased pursuant to the
Executive Put Right will be purchased at a price equal to the Fair Market Value
of such Executive Shares as of the Valuation Date, less the amount of any cash
distributed by the Company with respect to such Executive Shares between the
Valuation Date and the closing of such repurchase.
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(c) Put Procedures. The Executive Put Right is exercisable by
the Executive delivering written notice (the "Executive Put Notice") to the
Company during the 180 day period beginning on the date of such Executive's
termination of employment without Cause or such Executive's Permanent Total
Disability, as applicable. The Executive Put Notice will set forth the number of
Executive Shares to be sold to the Company and the holders of such Executive
Shares, but in no event shall such number exceed 20% of the Executive Shares
then owned by such Executive or any member of such Executive's Family Group.
(d) Closing. The closing of any transaction contemplated by
this Section 14 will take place on the date designated by the Company which date
will not be more than one (1) year after the date the Fair Market Value of the
applicable Executive Shares is finally determined pursuant to the terms of this
Agreement (including Section 15 hereof). The Company will pay for any Executive
Shares to be purchased by the Company pursuant to any Executive Put Right by
delivery of a check(s) payable or by wire transfer of immediately available
funds to the holder(s) of such Executive Shares in an aggregate amount equal to
the applicable repurchase price for such Executive Shares. Notwithstanding
anything to the contrary contained in this Agreement, all repurchases of
Executive Shares by the Company will be subject to applicable restrictions
contained in applicable law (including the Wisconsin Business Corporation Law)
and in the Company's and its Subsidiaries' debt and equity financing agreements.
If any such restrictions prohibit the repurchase of Executive Shares which the
Company is otherwise required to make pursuant to this Section 14 or if such
repurchase would cause a default under any of the Company's and/or its
Subsidiaries' debt and/or equity financing agreements, the Company shall make
such repurchases as soon as (i) it is permitted to do so under such restrictions
and (ii) such repurchase would not cause such a default. The Company will
receive customary representations and warranties from each seller regarding the
sale of Executive Shares, including, but not limited to, the representation that
such seller has good and marketable title to the Executive Shares to be
transferred free and clear of all liens, claims and other encumbrances.
(e) Termination. The provisions of this Section 14 shall
terminate upon the consummation of a Qualified Public Offering.
15. Determination of Fair Market Value.
(a) In connection with any repurchase by the Company of
Executive Shares for Fair Market Value pursuant to a Repurchase Option, the
Company shall provide the applicable Executive's estate with written notice of
the Board's determination of such Fair Market Value (a "Board Valuation Notice")
on the same day that the Company delivers the applicable Repurchase Notice. In
connection with any repurchase by the Company of Executive Shares for Fair
Market Value pursuant to any Put Right, the Company shall provide the applicable
Executive's estate or the applicable Executive, as applicable, with written
notice of the Board's determination of such Fair Market Value (also, a "Board
Valuation Notice") no later than sixty (60) days after the date of the Company's
receipt of the applicable Put Notice. At any time prior to the date sixty (60)
days after such Executive's estate or such Executive, as applicable, receives
such Board Valuation Notice, such Executive's estate or such Executive, as
applicable, may elect, by delivery of written notice to the Company, to dispute
the Board's determination of such Fair Market Value and cause a Valuation
Procedure (as herein defined) (a "Dispute Notice"). If such Executive's estate
or such Executive, as
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applicable, does not deliver a Dispute Notice within such sixty-day period, then
as of the end of such period the applicable Fair Market Value shall be deemed to
be as stated in the applicable Board Valuation Notice. In a Dispute Notice, such
Executive's estate or such Executive, as applicable, must elect either (a) that
the fees and expenses of the applicable Independent Financial Expert (as herein
defined) shall be paid 50% by such Executive's estate or such Executive, as
applicable, and 50% by the Company or (b) that (i) if the aggregate Fair Market
Value for the applicable Executive Shares as determined by the applicable
Independent Financial Expert is 115% or more of the aggregate Fair Market Value
for the applicable Executive Shares as determined by the Board and set forth in
the applicable Board Valuation Notice, then the fees and expenses of the
applicable Independent Financial Expert shall be paid 100% by the Company or
(ii) if the aggregate Fair Market Value for the applicable Executive Shares as
determined by the applicable Independent Financial Expert is less than 115% of
the aggregate Fair Market Value for the applicable Executive Shares as
determined by the Board and set forth in the applicable Board Valuation Notice,
then the fees and expenses of the applicable Independent Financial Expert shall
be paid 100% by such Executive's estate or such Executive, as applicable.
(b) For purposes of this Section 15, the term "Independent
Financial Expert" shall mean a nationally recognized investment banking firm (i)
that does not (and whose directors, officers, employees and Affiliates do not)
have a direct or indirect material financial interest in the Company, (ii) that
has not been, and, at the time it is called upon to serve as an Independent
Financial Expert under this Agreement is not (and none of whose directors,
officers, employees or Affiliates is) a promoter, director or officer of the
Company and (iii) that is otherwise qualified to serve as an independent
financial advisor. Any such Person may receive customary compensation and
indemnification by the Company for opinions or services it provides as an
Independent Financial Expert.
(c) For purposes of this Section 15, the term "Valuation
Procedure" shall mean, with respect to the determination of the Fair Market
Value of Executive Shares after the applicable Executive's estate or applicable
Executive, as applicable, has delivered a Dispute Notice to the Company, a
determination (which shall be final and binding on the Company and all holders
of the Executive Shares which are the subject of the applicable Put Notice) of
such Fair Market Value made by an Independent Financial Expert selected in
accordance with the further provisions of this definition. An Independent
Financial Expert shall be selected within ten (10) days following receipt by the
Company of such Dispute Notice, either by agreement among the Company and such
Executive's estate or such Executive, as applicable, or, in the absence of such
agreement, by lot from a list of four potential Independent Financial Experts
remaining after the Company nominates three, such Executive's estate or such
Executive, as applicable, nominates three, and each side eliminates one
potential Independent Financial Expert. The Independent Financial Expert shall
be instructed by the Company and such Executive's estate or such Executive, as
applicable, to make its determination within thirty (30) days of its selection.
16. Issuance by the Company of Subordinated Debt Warrants. The
parties hereto hereby acknowledge that, after the date hereof, the Company may
issue Subordinated Debt Warrants to certain Persons (the "Warrant Recipients").
In connection with any such issuance, the parties hereto agree that, with the
prior written consent of the Saw Mill Majority Holders, the Company may grant
(but shall be under no obligation to grant) such Warrant Recipients rights
substantially similar
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to the rights granted to the Warrant Investors hereunder (provided that, if such
grant is made, each such Warrant Recipient is also subject to the obligations of
the Warrant Investors hereunder) by causing each such Warrant Recipient to
execute a joinder to this Agreement substantially in the form of Exhibit A
hereto pursuant to which such Warrant Recipient shall be deemed a Warrant
Investor and an Equityholder for all purposes of this Agreement.
17. Amendment and Waiver. No modification or amendment of any
provision of this Agreement shall be effective against the Equityholders or the
Company unless such modification or amendment is approved in writing by (i) the
Saw Mill Majority Holders, (ii) holders of record of a majority of the number of
Executive Shares, (iii) holders of record of a majority of the number of Warrant
Investor Shares and (iv) the Company. No waiver of any provision of this
Agreement shall be effective against (i) any Saw Mill Investor unless such
waiver is approved in writing by the Saw Mill Majority Holders, (ii) any
Executive Investor unless such waiver is approved in writing by holders of
record of a majority of the number of Executives Shares or (iii) any Warrant
Investor unless such waiver is approved in writing by holders of record of a
majority of the number of Warrant Investor Shares. No waiver of any provision of
this Agreement shall be effective against the Company unless such waiver is
approved in writing by the Company. The failure of any party to enforce any of
the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
Each Equityholder shall remain a party to this Agreement only so long as such
person is the holder of record of Equityholder Shares.
18. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
19. Entire Agreement. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
20. Termination. This Agreement will automatically terminate
and be of no further force or effect immediately after the consummation of an
Approved Sale.
21. Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Company and its successors and assigns and the Equityholders and any
subsequent holders of Equityholder Shares and the respective successors, heirs
and assigns of each of them, so long as they hold Equityholder Shares.
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22. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
23. Remedies. The parties hereto shall be entitled to enforce
their rights under this Agreement specifically to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and any Equityholder may in his, hers, or its
sole discretion apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive relief (without posting a bond or
other security) in order to enforce or prevent any violation of the provisions
of this Agreement.
24. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered if
delivered personally, sent via a nationally recognized overnight courier, or
sent via facsimile to the recipient, or if sent by certified or registered mail,
return receipt requested, will be deemed to have been given two business days
thereafter. Such notices, demands and other communications will be sent to the
address indicated below:
To the Company:
Calendar Holdings, Inc.
_____________________________
_____________________________
Attention: President
Telecopy No.: (___) ___-____
With a copy, which shall not constitute notice, to:
Saw Mill Capital L.L.C.
22 Saw Mill River Road
Hawthorne, NY 10532
Attention: Howard Unger
Scott Budoff
Telecopy No.: (914) 592-8548
and
Kirkland & Ellis
153 East 53rd Street
New York, NY 10022
Attention: Frederick Tanne, Esq.
W. Brian Raftery, Esq.
Telecopy No.: (212) 446-4900
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To Saw Mill:
Saw Mill Capital Fund II, L.P.
22 Saw Mill River Road
Hawthorne, NY 10532
Attention: Howard D. Unger
Scott A. Budoff
Telecopy No.: (914) 592-8548
With a copy, which shall not constitute notice, to:
Kirkland & Ellis
153 East 53rd Street
New York, NY 10022
Attention: Frederick Tanne, Esq.
W. Brian Raftery, Esq.
Telecopy No.: (212) 446-4900
To Chase:
Chase Capital Investments, LLC
c/o Chase Capital Partners
380 Madison Avenue
New York, NY 10017
Attention: Richard D. Waters, Jr.
Telecopy No.: (212) 622-3101
With a copy, which shall not constitute notice, to:
O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza, 24th Floor
New York, NY 10112
Attention: Frederick M. Bachman, Esq.
Telecopy No.: (212) 728-5950
To MassMutual:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111-0001
Attention: Mark Ahmed
Liz Perenick
Telecopy No.: (413) 744-l6127
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To Northwestern:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attention: Securities Department
Telecopy No.: (414) 299-7124
or such other address, telecopy number or to the attention of such other person
as the recipient party shall have specified by prior written notice to the
sending party.
25. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of the Company's
incorporation, without giving effect to any rules, principles or provisions of
choice of law or conflict of laws.
26. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the date first above written.
[THE COMPANY]
By: __________________________________
Name:
Title:
SAW MILL CAPITAL FUND II, L.P.
By: Saw Mill Investments II, LLC,
Its General Partner
By: __________________________________
Name:
Title:
[OTHER EQUITYHOLDERS]
By: __________________________________
31
EXHIBIT A
FORM OF JOINDER TO
STOCKHOLDERS AGREEMENT
THIS JOINDER to the Stockholders Agreement dated as of
___________ __, 2000 by and among [___________], a Delaware corporation (the
"Company"), and certain equityholders of the Company (the "Agreement"), is made
and entered into as of _________ by and between the Company and
________("Holder"). Capitalized terms used herein but not otherwise defined
shall have the meanings set forth in the Agreement.
WHEREAS, Holder has acquired certain Equityholder Shares and
the Agreement and the Company require Holder, as a holder of such Equityholder
Shares, to become a party to the Agreement, and Holder agrees to do so in
accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Joinder hereby
agree as follows:
1. Agreement to be Bound. Holder hereby agrees that upon
execution of this Joinder, it shall become a party to the Agreement and shall be
fully bound by, and subject to, all of the covenants, terms and conditions of
the Agreement as though an original party thereto and shall be deemed a
[EXECUTIVE INVESTOR/SAW MILL INVESTOR/PREFERRED STOCK INVESTOR/WARRANT INVESTOR]
and an Equityholder for all purposes thereof. In addition, Holder hereby agrees
that all Common Shares held by Holder shall be deemed [EXECUTIVE/SAW
MILL/WARRANT INVESTOR] Shares and Equityholder Shares for all purposes of the
Agreement.
2. Successors and Assigns. Except as otherwise provided
herein, this Joinder shall bind and inure to the benefit of and be enforceable
by the Company and its successors, heirs and assigns and Holder and any
subsequent holders of Equityholder Shares and the respective successors, heirs
and assigns of each of them, so long as they hold any Equityholder Shares.
3. Counterparts. This Joinder may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
4. Notices. For purposes of Section 24 of the Agreement, all
notices, demands or other communications to the Holder shall be directed to:
[NAME]
[ADDRESS]
[FACSIMILE NUMBER]
5. Governing Law. This Joinder shall be governed by and
construed in accordance with the laws of the state of the Company's
incorporation, without giving effect to any rules, principles or provisions of
choice of law or conflict of laws.
6. Descriptive Headings. The descriptive headings of this
Joinder are inserted for convenience only and do not constitute a part of this
Joinder.
* * * * *
32
IN WITNESS WHEREOF, the parties hereto have executed this
Joinder as of the date first above written.
[_______________________]
By: ___________________________________
Name:
Title:
[HOLDER]
By: ___________________________________
Name:
Title:
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