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EXHIBIT 10.32
SHAREHOLDERS' AGREEMENT, dated as of October 15, 1998 (the
"Agreement"), among Granaria Holdings B.V., a Dutch
corporation ("Holdings"), Granaria Industries B.V., a Dutch
corporation ("Issuer"), Eagle-Picher Holdings, Inc., a
Delaware corporation ("Parent"), Eagle-Picher Industries,
Inc., an Ohio corporation (the "Company"), and each of the
persons designated as a Shareholder on the signature pages of
this Agreement and any subsequent holder of Restricted Stock
of the Issuer who shall become a signatory to this Agreement
(collectively, the "Shareholders").
Introduction
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In connection with the acquisition of the Company by the
Issuer, the Company adopted the Incentive Stock Plan of Eagle-Picher Industries,
Inc. (the "Plan").
Pursuant to the Plan, the Company transferred US$10 million to
the Eagle-Picher Management Trust (the "Trust") to fund its purchase of
non-voting certificates of beneficial ownership ("Restricted Stock") in a voting
trust established under Dutch law. Such voting trust was established for the
purpose of holding Class B shares of the Issuer (the "Class B Shares").
In accordance with the Plan, the Committee (as defined in the
Plan) granted units (the "Units") to certain Senior Officers (each, a "Senior
Officer") and Senior Managers (each, a "Senior Manager"). Each Unit represents
the right to receive from the Trust one share of Restricted Stock.
Pursuant to the Plan, each Shareholder will receive a
specified amount of Restricted Stock upon vesting of the Units, provided such
Shareholder enters into this Agreement.
As of the date of this Agreement, the Plan was amended and
restated (the "Amended Plan") to modify, among other things, the vesting of the
Units.
In consideration of the premises and of the mutual covenants
and obligations hereunder set forth, the parties agree as follows:
Section 1. DESIGNATION OF CUSTODIAN. Each Shareholder hereby
designates Granaria Industries to act as custodian of such Shareholder's shares
of Restricted Stock and to take physical possession of shares of Restricted
Stock at the time of the transfer of such shares to a Participant.
Section 2. VOTING TRUST. Each Shareholder hereby acknowledges
that the shares of Restricted Stock are non-voting certificates of beneficial
ownership ("certificaten van aandalen") in a voting trust ("stichting
administratie kantoor") established under Dutch law for purposes of holding
Class B Shares of the Issuer (or a successor voting trust established with
respect to shares received in exchange for Class B shares of the Issuer). Each
Shareholder further
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acknowledges that each share of Restricted Stock represents a beneficial
ownership interest in the voting trust corresponding to one Class B Share of the
Issuer (or shares received in exchange for one Class B Share of the Issuer).
Section 3. TRANSFER RESTRICTIONS. (a) Except as otherwise
provided in Sections 3(b), 4, 5, 6, 7 and 8 of this Agreement, no Shareholder
shall transfer, sell, assign, pledge, hypothecate or otherwise dispose (each, a
"Transfer") of any shares of Restricted Stock at any time. No Transfer of shares
in violation hereof shall be made or recorded on the books of the Company and
any such Transfer shall be void and of no effect.
(b) A Shareholder may Transfer his shares of Restricted Stock:
(i) to (A) the spouse, parents, siblings and lineal
descendants of such Shareholder, (B) a trust for the benefit
of any of the foregoing, (C) any corporation (other than the
Company) or partnership controlled by such Shareholder,
members of such Shareholder's immediate family and lineal
descendants or trusts for the benefit of any of the foregoing
and (D) upon the death of the Shareholder, the Shareholder's
estate, executors, administrators and personal
representatives, and heirs, legatees and distributees;
(ii) if such Shareholder has attained the age of 62;
(iii) if such Shareholder is a Senior Manager who has
held the Units and the associated Restricted Stock for an
aggregate period of not less than 10 years from the Award
Date; or
(iv) in the event of an Initial Public Offering.
(c) Any Transfer pursuant to Section 3(b) shall not be
effective until such time as the transferee has agreed in writing to be bound by
and to comply with all provisions of this Agreement.
Section 4. "COME ALONG" OBLIGATION. (a) Each Shareholder
shall, if requested by Holdings at any time, transfer for value a pro rata
portion of such Shareholder's shares of capital stock to any other person (the
"Proposed Buyer") in the manner set forth in this Section 4 in connection with
the transfer by Holdings of any of its shares of capital stock.
(b) If Holdings elects to exercise its rights under this
Section 4, it shall deliver a notice (the "Come Along Notice") to the
Shareholders. The Come Along Notice shall set forth the principal terms of the
proposed transfer insofar as it relates to the Common Stock or Class B Stock, as
the case may be, including the number of shares of capital stock to be
transferred, the transfer price, the form of consideration, the name and address
of the proposed transferee and the other principal terms of the proposed
transaction (the "Come Along Sale").
(c) Each Shareholder shall be bound and obligated to transfer
his or its Class B Shares in the Come Along Sale on the same terms and
conditions, including price per share (on a proportional basis), as Holdings
transfers its capital stock (including an agreement containing customary
representations, warranties and indemnities with respect to their ownership of
the
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shares), provided, however, that if the purchaser is an Affiliate, then the
terms and conditions, including price, shall be at least as favorable as could
be obtained in an arms'-length transaction with an unaffiliated third party. The
amount of capital stock to be transferred by a Shareholder shall be determined
on a pro rata basis according to the proportion which the number of shares which
Holdings intends to transfer in such Come Along Sale bears to the total number
of shares held by such Shareholder. Each Shareholder shall also take such
actions and execute such documents and instruments as shall be necessary or
desirable in order to consummate the Come Along Sale expeditiously and on the
same terms as Holdings transfers its Capital Stock. On or before the date
selected by Holdings for consummation of the proposed Come Along Sale, each
Shareholder shall instruct the custodian to deliver the shares of capital stock
to be transferred by such Shareholder, duly endorsed for transfer with signature
guaranteed, free and clear of any claims, with any stock transfer tax stamps
affixed, against delivery of the applicable purchase price.
(d) If more than 120 days elapse from the giving of the Come
Along Notice without the consummation of the Come Along Sale, the Shareholders
shall be released from their obligation under such Come Along Notice, and it
shall be necessary for a separate Come Along Notice to be furnished, and the
terms and provisions of this Section 4 separately complied with, in order to
consummate a Come Along Sale pursuant to this Section 4.
Section 5. RIGHT OF FIRST REFUSAL. (a) If, at any time, a
Shareholder is able to transfer its shares of Restricted Stock pursuant to this
Agreement and prior to an Initial Public Offering, a Shareholder receives a bona
fide offer (the "Offer") to purchase any or all of his shares of Restricted
Stock from a third party (the "Offeror") which such Shareholder wishes to
accept, the Shareholder shall cause the Offer to be reduced to writing and shall
notify Holdings and the Company in writing of such Shareholder's wish to accept
such Offer. Such notice shall contain an irrevocable offer to sell such shares
of Restricted Stock to the Company (in the manner set forth below) at a purchase
price equal to the price contained in, and on the same terms and conditions of,
the Offer, and shall be accompanied by a true copy of the Offer (which shall
identify the Offeror). During the period 30 days (and, if the Offer includes
consideration other than cash, such additional number of days, if any, necessary
to determine the equivalent all cash price pursuant to clause (ii) below) after
the date of the receipt by Holdings of the Shareholder's notice (the "Option
Period"), Holdings (or any of its designees) shall have the right and option to
purchase, or to arrange for a third party to purchase, all of the shares of
Restricted Stock covered by the Offer either (i) at the same price and on the
same terms and conditions as the Offer or (ii) if the Offer includes any
consideration other than cash, then at the sole option of Holdings, at the
equivalent all cash price (which shall be mutually agreed upon by the parties
pursuant to good faith negotiations between the parties within 10 business days
after the receipt of such notice or, if the parties cannot so agree within such
10 business day period, determined by an investment banking firm of national
reputation mutually and reasonably acceptable to, and promptly selected by, the
parties). If such option to purchase is exercised by Holdings, a certified bank
check or checks in the appropriate amount shall be delivered to the Shareholder
at the principal office of the Company against delivery of certificates or other
instruments representing the shares of Restricted Stock so purchased,
appropriately endorsed by the Shareholder.
(b) If at the end of the Option Period, Holdings has not
tendered the purchase price for such shares in the manner set forth above, the
Shareholder may during the succeeding 90
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day period sell not less than all of the shares of Restricted Stock covered by
the Offer to the Offeror at a price and on terms no less favorable to the
Shareholder than those contained in the Offer. No sale may be made to any
Offeror unless the Offeror agrees in a writing satisfactory to the Company to be
bound by and to comply with the provisions of this Agreement. Promptly after
such sale, the Shareholder shall notify the Company of the consummation thereof
and shall furnish such evidence of the completion and time of completion of such
sale and of the terms thereof as may reasonably be requested by the Company. If,
at the end of 90 days following the expiration of the Option Period, the
Shareholder has not completed the sale of such shares of Restricted Stock as
aforesaid, all the restrictions on sale, transfer or assignment contained in
this Agreement shall again be in effect with respect to such shares of
Restricted Stock.
Section 6. SHAREHOLDERS' PUT RIGHTS. (a) At any time prior to
an Initial Public Offering, each Affected Shareholder shall have the right, in
its sole discretion and on one occasion, to sell to the Company, and the Company
shall be required to purchase (the "Put Right"), from such Affected Shareholder
all or part of the shares of Restricted Stock then held by such Shareholder at a
price per share equal to the Agreed Share Price (as defined in the Amended
Plan). If an Affected Shareholder wishes to exercise its Put Right, such
Shareholder shall send written notice of such exercise to the Company and
Holdings, at least 60 days prior to the proposed closing, which notice shall
contain the number of shares of Restricted Stock which is the subject of such
exercise. During such 60 day period, Holdings, in its sole discretion, shall
have the right to purchase from the Affected Shareholder the number of shares
subject to the Put Right at a price per share equal to the Agreed Share Price.
If Holdings does not purchase such shares, the closing of the Company's purchase
shall take place at the principal office of the Company on the 60th day after
the giving of such notice. Each Put Right shall expire and have no further force
and effect if such right is not exercised by the Affected Shareholder (by
sending a notice as provided above) within 30 days after such Affected
Shareholder receives written notice of its Put Right. An "Affected Shareholder"
shall mean: (i) a Beneficiary or Incapacitated Shareholder, (ii) a Shareholder,
who is or was employed by the Company (or its Affiliates), at the time such
Shareholder attains the age 62 and (iii) a Shareholder whose employment with the
Company (or any Affiliate) is terminated other than for cause.
(b) In addition to the Put Right provided in Section 6(a),
each Senior Manager who has held his Units and the associated Restricted Stock
for an aggregate period of not less than 10 years from the Award Date shall have
the right, in its sole discretion and at any time, to sell to the Company, and
the Company shall be required to purchase (the "Manager Put Right"), from such
Senior Manager all or part of the shares of Restricted Stock then held by such
Shareholder at a price per share equal to the Agreed Share Price (as defined in
the Amended Plan). If a Senior Manager wishes to exercise its Manager Put Right,
such Senior Manager shall send written notice of such exercise to the Company
and Holdings, at least 60 days prior to the proposed closing, which notice shall
contain the number of shares of Restricted Stock which is the subject of such
exercise. During such 60 day period, Holdings, in its sole discretion, shall
have the right to purchase from the Senior Manager the number of shares subject
to the Manager Put Right at a price per share equal to the Agreed Share Price.
If Holdings does not purchase such shares, the closing of the Company's purchase
shall take place at the principal office of the Company on the 60th day after
the giving of such notice. Each Manager Put Right shall expire and have no
further force and effect at the time when the Senior Manager becomes an Affected
Shareholder
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(c) In addition to the Put Right provided in Section 6(a),
each Senior Officer shall have the right following the date upon which the
employee is no longer employed by the Company (the "Trigger Date"), in its sole
discretion, to sell to the Company, and the Company shall be required to
purchase (the "Special Put Right"), (i) on the third anniversary of the Trigger
Date, 50% of the shares of Restricted Stock then held by such officer; and (ii)
on the fifth anniversary of the Trigger Date, 50% of the shares of Restricted
Stock held by such officer as of the third anniversary of the Trigger Date, in
each case, at a price per share equal to the Agreed Share Price calculated at
the time of each purchase. If a Senior Officer wishes to exercise its Special
Put Right, such officer shall send written notice of such exercise to the
Company and Holdings at least 90 days prior to third anniversary and fifth
anniversary of the Trigger Date, as applicable. If a Senior Officer exercises
the Special Put Right, then during the 90 day period prior to the third
anniversary or the fifth anniversary of the Trigger Date, as applicable,
Holdings, in its sole discretion, shall have the right to purchase from the
officer the number of shares subject to the Special Put Right at a price per
share equal to the Agreed Share Price. If Holdings does not purchase such
shares, the closing of the purchase shall take place at the principal office of
the Company on the third anniversary or the fifth anniversary of the Trigger
Date, as applicable. Each Special Put Right shall expire and have no further
force and effect if such right is not exercised by the Senior Officer by sending
a notice as provided above.
Section 7. HOLDINGS' CALL RIGHTS. (a) Immediately following
the expiration of each Put Right pursuant to the terms of Section 6(a) of this
Agreement, Holdings (or its designee) shall have the right, in its sole
discretion (the "Call Right"), to purchase any or all of the shares of
Restricted Stock then held by such Affected Shareholder or its transferees, if
applicable, at a price per share equal to the Agreed Share Price. The Call Right
shall not be exercisable by Holdings if the Affected Shareholder is a Senior
Officer or a Beneficiary of a Senior Officer. If Holdings wishes to exercise its
rights under this Section 7, it shall send written notice (containing the number
of shares of Restricted Stock to be purchased) of such exercise to such Affected
Shareholder within the 30-day period following the expiration of the Affected
Shareholder's Put Right. The closing of such purchase shall occur at the
principal office of the Company 30 days after written notice is provided to the
Affected Shareholder. The Call Right shall expire and have no further force and
effect if such right is not exercised by Holdings or its designees (by sending a
notice as provided above) within the 30-day period following the expiration of
the Affected Shareholder's Put Right.
(b) In the event that a Senior Manager has held his Units and
the associated Restricted Stock for an aggregate period of not less than 10
years from the Award Date, Holdings (or its designee) shall have the right, from
time to time in its sole discretion (the "Manager Call Right"), to purchase any
or all of the shares of Restricted Stock then held by such Senior Manager or its
transferees, if applicable, at a price per share equal to the Agreed Share
Price. If Holdings wishes to exercise its rights under this Section 7, it shall
send written notice (containing the number of shares of Restricted Stock to be
purchased) of such exercise to such Senior Manager. The closing of such purchase
shall occur at the principal office of the Company 30 days after written notice
is provided to the Senior Manager. The Manager Call Right shall expire and have
no further force and effect at the time such Senior Manager becomes an Affected
Shareholder.
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(c) On the fifth anniversary of a Senior Officer's Trigger
Date, Holdings (or its designee) shall have the right, in its sole discretion
(the "Special Call Right"), to purchase any or all of the shares of Restricted
Stock then held by such Senior Officer or its transferees, if applicable, at a
price per share equal to the Agreed Share Price. If Holdings wishes to exercise
its Special Call Right, it shall send written notice (containing the number of
shares of Restricted Stock to be purchased) of such exercise to such Senior
Officer within the 30-day period following the fifth anniversary of such Senior
Officer's Trigger Date. The closing of such purchase shall occur at the
principal office of the Company 30 days after written notice is provided to the
Senior Officer. The Special Call Right shall expire and have no further force
and effect if such right is not exercised by Holdings or its designees (by
sending a notice as provided above) within the 30-day period following the fifth
anniversary of such Senior Officer's Trigger Date.
Section 8. OPTIONAL PUT/CALL RIGHT. (a) Each Shareholder may
elect (the "Election") to have the right, exercisable after December 1, 2003 by
written notice to the Company received on or before January 31, 2004, to sell to
the Company, and the Company shall be required to purchase from such
Shareholder, at the Agreed Share Price (the "Elective Put"), (i) within 60 days
of the exercise of the Elective Put Right, 25% of the shares of Restricted Stock
then held by such Shareholder or Beneficiary, if applicable, and (ii) within 60
days of the one-year anniversary of the exercise of the Elective Put Right, an
additional 25% of the shares of Restricted Stock held by such Shareholder or
Beneficiary, if applicable, on the date of exercise. During such 60 day periods,
Holdings, in its sole discretion, shall have the right to purchase from the
Shareholder the number of shares subject to the Elective Put at a price per
share equal to the Agreed Share Price. If Holdings does not purchase such
shares, the closing of the Company's purchase shall take place at the principal
office of the Company on the 60th day after the receipt of such notice. If a
Shareholder makes an Election, then Holdings (or its designee) shall have the
right to purchase, and the Shareholder shall be required to sell to Holdings (or
its designee), up to 50% of the shares of Restricted Stock then held by such
Shareholder or his Beneficiary, if applicable, at the Agreed Share Price (the
"Elective Call"), exercisable after December 1, 2003 by written notice given on
or before December 31, 2003. If Holdings (or its designee) exercises its
Elective Call, then the Elective Put shall be void. The closing of any Elective
Call shall be at the principal office of the Company on a date selected by
Holdings on or before January 31, 2004.
(b) In order to make an Election, a Shareholder must notify
Holdings and the Company in writing prior to January 31, 1999. Such Election
shall be irrevocable and shall be binding on any transferee who subsequently
receives such Shares. If a Shareholder fails to make an Election within such
time, the Shareholder shall not be entitled to the Elective Put and shall not be
subject to the Elective Call.
Section 9. SECURITIES LAW COMPLIANCE. (a) Each Shareholder
agrees that it will not Transfer any Restricted Stock, other than pursuant to
Sections 4, 5, 6 and 8, except upon furnishing to the Company prior to any such
Transfer: (i) a written opinion of counsel (which counsel and opinion shall be
reasonably satisfactory to the Company) to the effect that the proposed Transfer
may be made without registration under the Securities Act of 1933, as amended
(the "Act"); and (ii) either (x) a written opinion of counsel (which counsel and
opinion shall be reasonably satisfactory to the Company) to the effect that the
proposed Transfer may be made without registration or qualification under
applicable state securities laws or (y) evidence
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satisfactory to the Company that all necessary state securities law filings in
connection with the proposed Transfer have been made.
(b) Each certificate or other instrument evidencing the
securities issued upon the Transfer of any Restricted Stock (and each
certificate or other instrument evidencing any securities retained by the
transferor) shall bear the legend set forth in Section 9.
Section 10. LEGEND ON STOCK CERTIFICATES. Each certificate
representing shares of Restricted Stock shall bear the following legend, until
such time as the shares represented thereby are no longer subject to the
provisions hereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS AND CANNOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO REGISTRATION UNDER SAID ACT OR
IN COMPLIANCE WITH AN EXEMPTION THEREFROM AND, IN THE CASE OF
A TRANSACTION NOT SUBJECT TO SUCH REGISTRATION REQUIREMENTS,
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION UNDER THE ACT. ADDITIONALLY, THE SALE,
TRANSFER, ASSIGNMENT, PLEDGE, OR ENCUMBRANCE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A SHAREHOLDERS' AGREEMENT, DATED AS OF SEPTEMBER
30, 1998, AMONG GRANARIA HOLDINGS, B.V., GRANARIA INDUSTRIES,
B.V., EAGLE-PICHER HOLDINGS, INC., EAGLE-PICHER INDUSTRIES,
INC. (THE "COMPANY") AND THE SHAREHOLDERS NAMED AS PARTIES
THERETO, AND NO TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IN CONTRAVENTION OF SUCH AGREEMENT SHALL BE VALID
OR EFFECTIVE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE COMPANY."
Section 11. TERMINATION. This Agreement shall terminate, and
the custodian shall distribute all shares of Restricted Stock to the
Shareholders, upon (i) an Initial Public Offering, (ii) a merger or
consolidation involving the Issuer, or (iii) a sale, lease, exchange or other
transfer of all or substantially all of the assets of the Issuer, the Parent or
the Company. In its discretion the Committee may delay distribution of
Restricted Stock for a reasonable period of time following an event described in
this Section 11.
Section 12. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire
agreement
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among the parties with respect to the subject matter hereof and supersedes all
prior agreements or understandings between or among any of the parties hereto.
(b) DEFINITIONS. All defined terms not defined herein
shall have the meanings ascribed to them in the Amended Plan. For purposes of
this Agreement, the following terms shall have the following meanings:
"Affiliate" shall mean any entity if, (i) the
Company, directly or indirectly, owns at least 50% of the combined
voting power of all classes of stock of such entity or at least 50% of
the ownership interests in such entity, (ii) such entity, directly or
indirectly, owns at least 50% of the combined voting power of all
classes of stock of the Company, or (iii) such entity is at least 50%
owned (directly or indirectly) by one or more entities described in (i)
or (ii) above.
"Beneficiary" shall mean the person, persons, trust
or trusts which have been designated by a Shareholder who is or was
employed by the Company (or its Affiliates) in his or her most recent
written beneficiary designation filed with the Committee to receive the
Shareholder's rights under the Amended Plan upon the such Shareholder's
death, or, if there is no such designation or no such designated person
survives the Shareholder, then the person, persons, trust or trusts
entitled by will or applicable law to receive such rights or, if no
such person has such right then the executor or administrator of the
Shareholder who is or was employed by the Company (or its Affiliates).
"Incapacitated Shareholder" shall mean a Shareholder
who is or was employed by the Company (or its Affiliates) and who is
permanently and totally disabled within the meaning of Section 22(e)(3)
of the Internal Revenue Code of 1986, as amended.
"Initial Public Offering" shall mean the sale of (i)
the common stock of the Company or Parent if, at the time of the
offering, the shares of Restricted Stock are convertible into or
exchangeable for shares of Common Stock of the Company or Parent, as
the case may be, or (ii) the Class B Stock of the Issuer, in each case,
to the public pursuant to an effective registration statement under the
Act (or an equivalent regulatory authority) covering the offering and
sale of such shares for the Company, Parent or the Issuer, as
applicable, which shares following the offering will be listed on any
significant international stock exchange.
(c) SEVERABILITY. If any provision of this Agreement
shall be determined to be illegal and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms.
(d) HEADINGS. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
(e) NOTICES. All notices or other communications
which are required or permitted hereunder shall be in writing and sufficient if
delivered personally, sent by telecopy (with confirmation of receipt) or sent by
overnight courier or registered or certified mail, postage
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prepaid, return receipt requested, addressed, (i) if to a Shareholder, to such
Shareholder's address set forth on such Shareholder's signature page hereto;
(ii) if to the Company, to Eagle-Picher Industries, Inc., 250 East Fifth Street,
Cincinnati, Ohio 45202, Attention: David G. Krall, Esq., Fax No.: (513)
629-2572; (iii) if to Holdings, to Granaria Holdings B.V., Lange Voorhout 16,
P.O. Box 233, 2501 CE The Hague, The Netherlands, Attention: Peter J. Ph.
Kortenhorst, Fax No.: 011 31 70 312 11 99; or to such other address as the party
to whom notice is to be given may have furnished to the other party in writing
in accordance herewith. If mailed as aforesaid, any such communication shall be
deemed to have been given on the third business day following that on which the
piece of mail containing such communication is posted.
(f) COUNTERPARTS. This Agreement may be executed in
any number of counterparts, and each such counterpart hereof shall be deemed to
be an original instrument, but all such counterparts together shall constitute
but one agreement. From time to time additional Shareholders may become parties
to this Agreement by executing a counterpart hereof without necessity of
execution by the other parties.
(g) ASSIGNMENT. This Agreement shall not be
assignable by any party without the written consent of the other parties;
PROVIDED, HOWEVER, that the Company shall have the right to assign any or all of
its rights or obligations to purchase shares of Restricted Stock pursuant to
Sections 3, 4 and 5 hereof. Any purported assignment not permitted hereunder
shall be void.
(h) MODIFICATION. Except as otherwise provided
herein, neither this Agreement nor any provision hereof may be modified,
changed, discharged or terminated except by an instrument in writing signed by
the Holdings, the Issuer, the Company and Shareholders holding 75% or more of
the outstanding Restricted Stock held by all Shareholders. Notwithstanding the
foregoing, the Committee may cause the Class B Shares to be exchanged for
non-voting shares of common stock of Parent, provided that such shares in the
aggregate represent the same indirect proportional ownership in the Company as
the Class B Shares represent on the date hereof. In such event, the term
"Restricted Stock" shall refer to non-voting certificates of beneficial
ownership in a voting trust established under Delaware law for the purpose of
holding the non-voting common stock of Parent received in exchange for the Class
B Shares.
(i) ADDITIONAL ACTIONS. Each Shareholder agrees (i)
that the Board and officers of the Company may take any additional corporate
action necessary to make effective the provisions hereof, including (without
limitation) filing any amendments to the Company's charter and other
constitutive documents, and hereby appoints the Company's Secretary its
attorney-in-fact for the execution of all such documents, consents and approvals
and (ii) that it will vote its shares of Restricted Stock to approve any such
action.
(j) RIGHTS TO NEGOTIATE REPURCHASE PRICE. Nothing in
this Agreement shall be deemed to restrict or prohibit the Company or Holdings
(or its designees) from purchasing shares of Restricted Stock from a
Shareholder, at any time, upon such terms and conditions, and for such price, as
may be mutually agreed upon between the parties, whether or not at the time of
such purchase circumstances exist which specifically grant the Company or
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Holdings (or its designees) the right to purchase, or the Shareholder the right
to sell, shares of Restricted Stock under the terms of this Agreement.
(k) EMPLOYMENT BY THE COMPANY. Nothing contained in
this Agreement or in any other agreement entered into by the Company and the
Shareholder contemporaneously with the execution of this Agreement (i) obligates
the Company or any subsidiary of the Company to employ the Shareholder in any
capacity whatsoever or (ii) prohibits or restricts the Company (or any
subsidiary) from terminating the employment, if any, of the Shareholder at any
time or for any reason whatsoever, with or without cause, and the Shareholder
hereby acknowledges and agrees that neither the Company nor any other person has
made any representations or promises whatsoever to the Shareholder concerning
the Shareholder's employment or continued employment by the Company.
(l) REMEDIES. In the event of a breach or threatened
breach by a Shareholder of the provisions of this Agreement, the Company shall
be entitled to an injunction restraining such Shareholder from such breach or
compelling compliance with such provision. Nothing contained herein shall be
construed as prohibiting the Company or any Shareholder from pursuing any other
remedies available at law or equity for such breach or threatened breach of this
Agreement.
(m) SPECIFIC ENFORCEMENT. Each Shareholder expressly
agrees that such Shareholder and the Company will be irreparably damaged if this
Agreement is not specifically enforced. Upon a breach or threatened breach of
the terms, covenants or conditions of this Agreement by a Shareholder, the other
Shareholders and the Company shall, in addition to all other remedies, each be
entitled to a temporary or permanent injunction, without showing any actual
damage, or a decree for specific performance, in accordance with the provisions
hereof.
(n) CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT FOR THOSE MATTERS REQUIRED TO BE
GOVERNED BY THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE.
(o) CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF FEDERAL AND STATE COURTS OF OHIO FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, AND EACH OF THE PARTIES HERETO AGREES NOT TO
COMMENCE ANY LEGAL PROCEEDING RELATED THERETO EXCEPT IN SUCH COURT. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING IN ANY SUCH COURT AND
HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
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JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(p) SET-OFF. The Company or any Affiliate shall have the right to
set off any amounts owed by a Shareholder to the Company or any Affiliate
against any amounts payable by the Company or any Affiliate to a Shareholder.
(q) TRANSFER DOCUMENTS. In connection with any put or call right
contained herein, a Shareholder shall deliver such instruments and documents as
may be reasonably required by the Company or Holdings or their designee, as
applicable, to transfer good title to any Restricted Shares transferred, free
and clear of any liens or encumbrances whatsoever, and shall warrant the same
and indemnify the purchaser for any breach of such warranty, as a condition to
receipt of payment therefor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written or, if such party has dated its signature, on the
date(s) set forth below.
GRANARIA HOLDINGS, B.V. GRANARIA INDUSTRIES, B.V.
By: By:
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Name: Name:
Title: Title:
EAGLE-PICHER HOLDINGS, INC. EAGLE-PICHER INDUSTRIES, INC.
By: By:
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Name: Name:
Title: Title:
SHAREHOLDERS:
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Signature
Name:
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Please Print
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Street Address
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City, State, Zip
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