EXHIBIT 4.2
HILLMAN INVESTMENT COMPANY
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of March
31, 2004, by and among (i) Hillman Investment Company, a Delaware corporation
(the "Company"), (ii) Code Hennessy & Simmons IV LP ("CHS" and, together with
any partner or an affiliated fund of CHS and any other co-investor of such funds
(including Randolph Street Partners VI) set forth from time to time on the
attached Schedule of Stockholders under the heading "CHS Group" that at any time
acquires securities of the Company in accordance with the terms hereof and
executes a counterpart of this Agreement or otherwise agrees to be bound by this
Agreement, the "CHS Group"), (iii) Ontario Teachers' Pension Plan Board, an
Ontario corporation ("Teachers", and together with each Person within the CHS
Group, the "Investors"), (iv) each executive employee on the attached Schedule
of Stockholders under the heading "Executives" and any other executive employee
of the Company or its Subsidiaries who, at any time, acquires securities, or
options to acquire securities, of the Company in accordance with the terms
hereof and executes a counterpart of this Agreement or otherwise agrees to be
bound by this Agreement (each, an "Executive" and collectively, the
"Executives"), (v) HarbourVest Partners VI - Direct Fund, L.P., a Delaware
limited partnership ("HarbourVest"), and (vi) each of the other Persons set
forth from time to time on the attached Schedule of Stockholders under the
heading "Other Investors" who, at any time, acquires securities of the Company
in accordance with the terms hereof and executes a counterpart of this Agreement
or otherwise agrees to be bound by this Agreement (each, an "Other Investor" and
collectively, the "Other Investors"). The Investors, the Executives, HarbourVest
and the Other Investors are collectively referred to as the "Stockholders" and
individually as a "Stockholder." Capitalized terms used herein and not otherwise
defined are defined in Section 5 hereof.
HCI Acquisition Corp., a Delaware corporation ("HCI"), The Hillman
Companies, Inc., a Delaware corporation and the direct parent of the Company
("Hillman"), and the stockholders and optionholders of Hillman have entered into
the Agreement and Plan of Merger, dated as of February 14, 2004 (the "Merger
Agreement"), pursuant to which HCI was merged with and into Hillman on the date
hereof (the "Merger") with Hillman being the surviving corporation in the
Merger.
In connection with the consummation of the Merger, the Investors and
HarbourVest acquired shares of the Preferred Stock pursuant to the Investment
Company Securities Purchase Agreement, dated as of the date hereof, by and among
the Company, the Investors and HarbourVest (the "Securities Purchase
Agreement").
HCI, each Executive and, by virtue of the consummation of the Merger
and execution by the Company of a joinder agreement, the Company are parties to
an Executive Securities Agreement dated as of the date hereof (such agreements,
together with any similar agreements entered into after the date hereof with any
Executives, the "Executive Securities Agreements"), pursuant to which each
Executive shall acquire certain options exercisable for Preferred Stock upon
consummation of the Merger.
The Company and the Stockholders desire to enter into this Agreement
for the purpose, among others, of (i) limiting the manner and terms by which
shares of capital stock, and options for capital stock, in the Company may be
transferred and (ii) assuring continuity in the ownership of the Company. The
execution and delivery of this Agreement is a condition to the Investors' and
HarbourVest's purchase of Preferred Stock pursuant to the Securities Purchase
Agreement.
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 Agreement hereby agree as follows:
1. Representations and Warranties. Each Stockholder hereby
represents and warrants that (a) such Stockholder will, upon the consummation of
the transactions contemplated in connection herewith, be the record owner of the
amount of Stockholder Shares set forth opposite its name on the Schedule of
Stockholders attached hereto, (b) this Agreement has been duly authorized,
executed and delivered by such Stockholder and constitutes the valid and binding
obligation of such Stockholder, enforceable in accordance with its terms, and
(c) such Stockholder is not a party to any agreement which is inconsistent with,
conflicts with or violates any provision of this Agreement. No holder of
Stockholder Shares shall become party to any agreement which is inconsistent
with, conflicts with or violates any provision of this Agreement.
2. Restrictions on Transfer of Securities.
(a) Transfer of Stockholder Shares. No holder of Stockholder
Shares may sell, transfer, assign, pledge or otherwise dispose of (whether
directly or indirectly, whether with or without consideration and whether
voluntarily or involuntarily or by operation of law) any interest (legal or
beneficial) in any Stockholder Shares (a "Transfer"), except Transfers pursuant
to and in accordance with the provisions of Sections 2(b), Section 2(c) or
Section 3 of this Agreement or in connection with a Sale of the Company or as
contemplated under the Executive Securities Agreements; provided that in no
event shall any Transfer (other than a Transfer made pursuant to Sections 2(b)
or 2(c)) be made without the prior written consent of (i) a majority of the
Company's board of directors (the "Board"), in the case of a Transfer by a
Holder (other than the CHS Group and Teachers), (ii) CHS, in the case of a
Transfer by Teachers and (iii) Teachers, in the case of a Transfer by a member
of the CHS Group; and provided, further, that any such written consent shall not
be unreasonably withheld.
(b) Permitted Transfers. The restrictions set forth in this
Section 2 shall not apply with respect to any Transfer made (i) pursuant to the
terms of any Executive Securities Agreement between the Company and any of its
executives, (ii) in the case of any holder of Stockholder Shares who is an
individual, pursuant to applicable laws of descent and distribution or to such
holder's legal guardian in the case of any mental incapacity or among such
holder's Family Group, (iii) in the case of any holder of Stockholder Shares
which is an entity, among its Affiliates or (iv) in a Sale of the Company. The
restrictions contained in this Section 2 will continue to be applicable to
Stockholder Shares after any Transfer under this Section 2 and the transferees
of such Stockholder Shares will agree in writing to be bound by the provisions
of this Agreement upon or prior to any such Transfer. Any transferee of
Stockholder Shares pursuant to a transfer in accordance with the provisions of
this Section 2(b) is herein referred to as a
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"Permitted Transferee." No less than 10 days prior to the Transfer of
Stockholder Shares pursuant to this Section 2(b), the proposed transferee(s)
shall deliver a written notice to the Company, which notice shall disclose in
reasonable detail the identity of such transferee.
(c) Transfers to CHS and Teachers. Prior to any sale or other
Transfer of Stockholder Shares by any Stockholder (other than a member of the
CHS Group or Teachers) (the "Transferring Stockholder") to either any member of
the CHS Group or Teachers (the "Transferee Investor"), the Transferring
Stockholder shall give written notice (the "Investor Sale Notice") of the price
and other material terms of such sale or other Transfer to whichever of CHS or
Teachers is not the Transferee Investor in such sale or other Transfer (the
"Other Investor"). The Other Investor may, within 15 days following receipt of
the Investor Sale Notice, give to the Transfering Stockholder and the Transferee
Investor a written notice indicating that it desires to purchase or otherwise
acquire a portion of the Stockholder Shares being sold or Transferred in such
sale or other Transfer in accordance with the terms of this Section 2(c). If the
Other Investor elects to purchase or otherwise acquire Stockholder Shares in
such sale or other Transfer, the Other Investor will be entitled to purchase or
otherwise acquire in the proposed sale or other Transfer, at the same price and
on the same terms and conditions, an amount of Stockholder Shares of the type
proposed to be sold or Transferred equal to the product of (i) the quotient
determined by dividing (x) the amount of such class of Stockholder Shares owned
by the Other Investor by (y) the aggregate amount of such class of Stockholder
Shares owned by the Transferee Investor and the Other Investor, multiplied by
(ii) the amount of such class of Stockholder Shares to be sold or Transferred in
such contemplated sale or Transfer.
(d) No Transfers to Competitors. Notwithstanding anything herein
to the contrary, no Transfer shall be made to a Person determined by the Board
to be a competitor of Hillman or the Company or any of their respective
Subsidiaries.
(e) Termination. The provisions of this Section 2 will terminate
automatically and be of no further force and effect upon the first to occur of
(i) the consummation of a Sale of the Company and (ii) the consummation of a
Public Offering.
3. Participation Rights.
(a) Prior to any sale (a "Sale") of Stockholder Shares by any
Investor or HarbourVest (the "Transferring Investor"), the Transferring Investor
shall give written notice of the price and other material terms of the Sale (a
"Sale Notice") to the Company and the other Stockholders (collectively, the
"Other Stockholders"). Each Other Stockholder may, within 15 days following
receipt of the Sale Notice, give to the Company a written notice (a "Co-Sale
Notice") indicating that it desires to participate in the proposed Sale. If any
Other Stockholders have elected to participate in such Transfer, each such Other
Stockholder will be entitled to sell in the proposed sale, at the same price and
on the same terms and conditions, an amount of Stockholder Shares of the type
proposed to be transferred equal to the product of (i) the quotient determined
by dividing (x) the amount of such class of Stockholder Shares owned by such
Other Stockholder by (y) the aggregate amount of such class of Stockholder
Shares owned by all of the holders of Stockholder Shares participating in such
proposed Sale, multiplied by (ii) the amount of such class of Stockholder Shares
to be sold in the contemplated Sale. For the purposes of this Section 3(a), the
Stockholder Shares of an employee of the Company or any of its Subsidiaries
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shall be the Purchased Equity (as defined in the Executive Securities
Agreements) only, if any, held by such individual pursuant his Executive
Securities Agreement.
(b) The Transferring Investor shall use commercially reasonable
efforts to obtain the agreement of the prospective transferee(s) to the
participation of the Other Stockholders who have elected to participate in any
contemplated Sale, and the Transferring Investor shall not sell any of its
Stockholder Shares if the prospective transferee(s) decline(s) to allow the
participation of the Other Stockholders who have elected to participate. Each
Stockholder transferring Stockholder Shares pursuant to this Section 3 shall pay
its pro rata share (based on the number of Stockholder Shares to be sold) of the
expenses incurred by the Stockholders in connection with such transfer and shall
be obligated to join on the same pro rata basis in any indemnification or other
obligations that the Transferring Investor agrees to provide in connection with
such transfer.
(c) Notwithstanding anything to the contrary in any other
provision of this Agreement, the restrictions set forth in this Section 3 shall
not apply to (i) any Transfer of Stockholder Shares by any Investor to or among
its Affiliates, (ii) Transfers pursuant to Section 2(c) or (iii) a Transfer
pursuant to a Sale of the Company; provided that the restrictions contained in
this Agreement will continue to be applicable to the Stockholder Shares after
any Transfer pursuant to clause (i) and the transferee of such Stockholder
Shares shall agree in writing to be bound by the provisions of this Agreement.
Upon the Transfer of Stockholder Shares pursuant to clause (i) of the previous
sentence, the transferees will deliver a written notice to the Company, which
notice will disclose in reasonable detail the identity of such transferee.
(d) The provisions of this Section 3 will terminate automatically
and be of no further force and effect upon the first to occur of (i) the
consummation of a Public Offering and (ii) the consummation of a Sale of the
Company.
4. Additional Restrictions on Transfer.
(a) Restricted Securities Legend. The Stockholder Shares have not
been registered under the 1933 Act and, therefore, in addition to the other
restrictions on Transfer contained in this Agreement, cannot be sold unless
subsequently registered under the 1933 Act or an exemption from such
registration is then available. Each certificate evidencing Stockholder Shares
and each certificate issued in exchange for or upon the Transfer of any
Stockholder Shares (if such securities remain Stockholder 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 WERE ORIGINALLY ISSUED ON
MARCH 31, 2004 AND 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 ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER
SPECIFIED IN THE STOCKHOLDERS AGREEMENT, DATED AS OF MARCH 31, 2004,
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AS AMENDED AND MODIFIED FROM TIME TO TIME, AMONG THE ISSUER OF THE
SECURITIES (THE "COMPANY"), AND CERTAIN OTHER PERSONS, AND THE COMPANY
RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO ANY TRANSFER. A COPY OF
SUCH CONDITIONS SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF
UPON WRITTEN REQUEST AND WITHOUT CHARGE."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares. The legend set forth above shall be removed from the certificates
evidencing any Stockholder Shares which cease to be Stockholder Shares in
accordance with the definition thereof.
(b) Opinion of Counsel. No holder of Stockholder Shares may sell,
transfer or dispose any of its Stockholder Shares except pursuant to an
effective registration statement under the 1933 Act, a Sale of the Company,
pursuant to the terms of an Executive Securities Agreement between the Company
and an executive of the Company, without first delivering to the Company an
opinion of counsel (reasonably acceptable in form and substance to the Company)
that neither registration nor qualification under the 1933 Act and applicable
state securities laws is required in connection with such transfer; provided,
however, that no such opinion shall be required for a sale of Stockholder Shares
pursuant to Rule 144 of the Securities and Exchange Commission or a Transfer by
any Stockholder to an Affiliate of such Stockholder.
5. Definitions.
"Affiliate" means, with respect to any Person, any other Person
which, directly or indirectly, controls, is controlled by or under common
control with such Person.
"Agreement" shall have the meaning set forth in the preface.
"CHS" shall have the meaning set forth in the preface.
"CHS Shares" means any Stockholder Shares issued to or held by any
member of the CHS Group.
"Common Stock" means the Company's common stock, par value $0.01 per
share.
"Company" shall have the meaning set forth in the preface.
"Family Group" means (i) a Person's spouse and descendants (whether
natural or adopted), (ii) any trust solely for the benefit of the Person and/or
any of the Person's spouse and/or descendants and (iii) any entity wholly owned
by the Person.
"Hillman Common Stock" means Hillman's Class A Common Stock, par
value $0.01 per share, Class B Common Stock, par value $0.01 per share, and
Class C Common Stock, par value $0.01 per share.
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"Hillman Preferred Stock" means Hillman's Class A Preferred Stock,
par value $0.01 per share.
"Hillman Stockholders Agreement" means the Stockholders Agreement,
dated as of the date hereof, among Hillman and its stockholders, as amended from
time to time in accordance with its terms.
"Holder" means each holder of Stockholder Shares.
"1933 Act" means the Securities Act of 1933, as amended from time to
time.
"Other Investor" and "Other Investors" shall have the meaning set
forth in the preface.
"Original Cost" has the meaning set forth in the Hillman
Stockholders Agreement.
"Other Stockholders" shall have the meaning set forth in Section 3.
"Permitted Transferees" shall have the meaning set forth in Section
2(b).
"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 and a governmental entity or any
department, agency or political subdivision thereof.
"Preferred Stock" means the Company's Class A Preferred Stock, par
value $0.01 per share.
"Public Offering" means an underwritten public offering and sale,
registered under the 1933 Act, of shares of the Company's Common Stock or
Hillman's Common Stock.
"Public Sale" means any sale of Stockholder Shares to the public
pursuant to an offering registered under the 1933 Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 (or any
similar provision then in force) under the 1933 Act (other than Rule 144(k)
prior to a Public Offering).
"Sale" shall have the meaning set forth in Section 3.
"Sale Notice" shall have the meaning set forth in Section 3.
"Sale of the Company" means any transaction or series of
transactions pursuant to which any Person(s) or a group of related Persons
(other than the Investors and their Affiliates) in the aggregate acquire(s) (i)
capital stock of the Company possessing the voting power (other than voting
rights accruing only in the event of a default, breach, event of noncompliance
or other contingency) to elect a majority of the Board (whether by merger,
consolidation, reorganization, combination, sale or transfer of the Company's
capital stock, shareholder or voting agreement, proxy, power of attorney or
otherwise), (ii) all or substantially all of the Company's assets determined on
a consolidated basis, (iii) capital stock of Hillman possessing
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the voting power (other than voting rights accruing only in the event of a
default, breach, event of noncompliance or other contingency) to elect a
majority of Hillman's board of directors (whether by merger, consolidation,
reorganization, combination, sale or transfer of Hillman's capital stock,
shareholder or voting agreement, proxy, power of attorney or otherwise) or (iv)
all or substantially all of Hillman's assets determined on a consolidated basis;
provided, that a Sale of the Company shall not include a Public Offering.
"Stockholder" and "Stockholders" shall have the meaning set forth in
the preface.
"Stockholder Shares" means any of the following held by any
Stockholder, any Permitted Transferee or any transferee in connection with any
Transfer or issuance (other than pursuant to a Public Sale or a Sale of the
Company or pursuant to Section 3): (i) any shares of Preferred Stock or other
equity interests in the Company or any successor thereto, (ii) any warrants,
options, or other rights to subscribe for or to acquire, directly or indirectly,
Preferred Stock or other equity interests in the Company or any successor
thereto, whether or not then exercisable or convertible, (iii) any interests,
stock, notes, or other securities which are convertible into or exchangeable
for, directly or indirectly, Preferred Stock or other equity interests in the
Company or any successor thereto, whether or not then convertible or
exchangeable, (iv) any Preferred Stock or other equity interests in the Company
or any successor thereto issued or issuable upon the exercise, conversion, or
exchange of any of the securities referred to in clauses (i) through (iii) above
and (v) any securities issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) through (iv) above by way of dividend,
distribution, split or combination or in connection with any recapitalization,
merger, consolidation, or other reorganization. As to any particular securities
constituting Stockholder Shares, such securities will cease to be Stockholder
Shares when they have been transferred in a Public Sale or Sale of the Company
or have been repurchased by the Company or any Subsidiary of the Company.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, 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, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person or a combination thereof, or (ii) if a limited
liability company, partnership, 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 any Person or one or more
Subsidiaries of such Person or entity or a combination thereof. For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity.
6. Transfers.
(a) Transferees. The provisions of this Agreement shall continue
to be applicable to the Stockholder Shares after any Transfer of such
Stockholder Shares (other than
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pursuant to a Sale of the Company or a Public Offering), and each transferee of
such Stockholder Shares shall, as a condition to any such Transfer, agree in
writing to be bound by the provisions of this Agreement affecting the
Stockholder Shares so transferred.
(b) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Stockholder Shares as the owner
of such securities for any purpose.
7. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company, CHS and, for so long
as Teachers and its Affiliates own Stockholder Shares and shares of Hillman
Common Stock and Hillman Preferred Stock with an aggregate Original Cost to
Teachers of at least $25,000,000, Teachers; provided that, in the event an
amendment, modification or waiver would treat a class or group of holders of
Stockholder Shares in a manner materially and adversely differently from any
other class or group of holders of Stockholder Shares, then such amendment,
modification or waiver will also require the consent of the holder or the
holders of a majority of the Stockholder Shares of such class or group so
materially adversely affected thereby; provided, further, that no amendment or
modification that by its terms expressly amends in an adverse manner (x) any
right specifically granted to a particular Stockholder (or a particular group of
Stockholders) hereunder or (y) any obligation of any Stockholder or particular
group of Stockholders (including without limitation by adding any new
obligation) hereunder shall be effective without the prior written consent of
such Stockholder(s); provided, further, that no amendment to Section 3 or 7 (to
the extent it amends this proviso) hereof shall be effective without the prior
written approval of HarbourVest; and provided, further, that no amendment to
this Section 7 shall be made without the consent of Teachers. 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. The parties hereto agree that the addition of new
parties to this Agreement without any other modifications, amendments or waivers
(including other executives of the Company who purchase securities of the
Company and persons complying with Section 8 hereof) with the consent of CHS
shall not constitute a modification, amendment or waiver of this Agreement.
8. 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
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in 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.
9. Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings,
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agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
10. 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 Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares; provided that the rights and
obligations of the Stockholders under this Agreement may not be assigned except
in connection with a permitted transfer of Stockholder Shares hereunder.
11. Counterparts; Facsimile Signature. This Agreement may be
executed in multiple counterparts, each of which shall be an original and all of
which taken together shall constitute one and the same agreement. This Agreement
may be executed by facsimile signature.
12. Remedies. Each of the parties to this Agreement shall be
entitled to enforce his, her or its rights under this Agreement specifically, to
recover damages and costs caused by any breach of any provision of this
Agreement and to exercise all other rights existing in his, her or its 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 any
party may in his, her 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.
13. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent via facsimile, mailed
first class mail (postage prepaid) or sent by reputable overnight courier
service (charges prepaid) to the Company at the address set forth below and to
any other recipient at the address indicated on the Schedule of Stockholders
attached hereto and to any subsequent holder of Stockholder Shares subject to
this Agreement at such address as indicated by the Company's records, or at such
address or to the attention of such other Person as the recipient party has
specified by prior written notice to the sending party. Notices shall be deemed
to have been given hereunder when delivered personally, three days after deposit
in the U.S. mail and one day after deposit with a reputable overnight courier
service. The Company's address is:
Hillman Investment Company
c/o The Hillman Companies, Inc.
10590 Hamilton Avenue
Cincinnati, Ohio 45231
Attention: Chief Executive Officer
with a copy (which will not constitute notice to the Company) to:
Code Hennessy & Simmons IV LP
10 South Wacker Drive, Suite 3175
Chicago, Illinois 60606
Attention: Peter M. Gotsch
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and
Kirkland & Ellis LLP
200 East Randolph Drive
Chicago, IL 60601
Attention: Stephen L. Ritchie, P.C.
14. Governing Law. All issues and questions concerning the
construction, validity, interpretation and enforceability of this Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware.
15. Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company's chief-executive office is located, the time
period shall automatically be extended to the business day immediately following
such Saturday, Sunday or legal holiday.
16. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
17. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN
OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS
AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIP
ESTABLISHED AMONG THE PARTIES HEREUNDER.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Hillman Investment Company Stockholders Agreement on the day and year first
above written.
COMPANY: HILLMAN INVESTMENT COMPANY
By: /s/ MAX W. HILLMAN
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Its:
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CHS GROUP: CODE HENNESSY & SIMMONS IV LP
By: CHS Management IV LP
Its: General Partner
By: Code Hennessy & Simmons LLC
Its: General Partner
By: /s/ PETER M. GOTSCH
---------------------------------------
Peter M. Gotsch
Partner
CHS ASSOCIATES IV LP
By: CHS Management IV LP
Its: General Partner
By: Code Hennessy & Simmons LLC
Its: General Partner
By: /s/ PETER M. GOTSCH
---------------------------------------
Peter M. Gotsch
Partner
RANDOLPH STREET PARTNERS VI
By: /s/ STEPHEN L. RITCHIE
---------------------------------------
Managing Partner
/s/ PAIGE WALSH
--------------------------------------------
Paige Walsh
[Signature Page to Hillman Investment Company Stockholders Agreement]
TEACHERS: ONTARIO TEACHERS' PENSION PLAN BOARD
By: /s/ J. MARK MACDONALD
---------------------------------------
Its:
---------------------------------------
HARBOURVEST PARTNERS VI - DIRECT FUND, L.P.
HARBOURVEST: By: HarbourVest VI - Direct Associates LLC
Its: General Partner
By: HarbourVest Partners, LLC
Its: Managing Member
By: /s/ WILLIAM A. JOHNSTON
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[Signature Page to Hillman Investment Company Stockholders Agreement]
EXECUTIVES: /s/ Max W. Hillman Jr.
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Max W. Hillman Jr.
/s/ Richard P. Hillman
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Richard P. Hillman
/s/ James P. Waters
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James P. Waters
/s/ Dennis Blake
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Dennis Blake
/s/ Gary Seeds
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Gary Seeds
/s/ Ken Foskey
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Ken Foskey
/s/ Terry Rowe
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Terry Rowe
/s/ George Heredia
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George Heredia
/s/ Rick Buller
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Rick Buller
/s/ John Marshall
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John Marshall
[Signature Page to Hillman Investment Company Stockholders Agreement]