STOCKHOLDERS’ AGREEMENT Relating to CLASS A COMMON STOCK and CLASS B COMMON STOCK of FAIRCHILD CORPORATION Dated as of September 5, 2008
Relating
to
CLASS
A COMMON STOCK
and
CLASS
B COMMON STOCK
of
XXXXXXXXX
CORPORATION
Dated
as of September 5, 2008
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TABLE OF
CONTENTS
| SECTION 1. | DEFINITIONS |
1
|
|
| SECTION 2. | DURATION OF AGREEMENT |
4
|
|
|
SECTION
3.
|
ELECTION OF DIRECTORS |
4
|
|
| SECTION 4. | TRANSFER RESTRICTIONS; RIGHTS OF FIRST OFFER |
7
|
|
| SECTION 5. | DRAG-ALONG RIGHTS |
10
|
|
| SECTION 6. | RIGHT OF PARTICIPATION IN SALES |
11
|
|
| SECTION 7. | XXXXXXX STOCKHOLDER OPTION ON SHARES OWNED BY PHOENIX STOCKHOLDER |
12
|
|
| SECTION 8. | LEGEND |
13
|
|
| SECTION 9. | SEVERABILITY |
13
|
|
| SECTION 10. | EXPENSES |
13
|
|
| SECTION 11. | GOVERNING LAW |
14
|
|
| SECTION 12. | BENEFITS OF AGREEMENT |
14
|
|
| SECTION 13. | ADDITIONAL PARTIES |
14
|
|
| SECTION 14. | FAILURE TO COMPLY; INJUNCTIVE RELIEF |
14
|
|
| SECTION 15. | NOTICES |
15
|
|
| SECTION 16. | MODIFICATION |
15
|
|
| SECTION 17. | CAPTIONS |
15
|
|
| SECTION 18. | NOUNS AND PRONOUNS |
15
|
|
| SECTION 19. | MERGER PROVISION |
15
|
|
| SECTION 20. | COUNTERPARTS |
15
|
|
| SECTION 21. | NO PRIOR AGREEMENTS |
15
|
|
| SECTION 22. | ADJUSTMENTS FOR STOCK SPLITS, ETC. |
15
|
|
| SECTION 23. | RULES OF USAGE |
15
|
NY #1725506 v9
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EXHIBITS
Exhibit
A Form
of Irrevocable Proxy
SCHEDULES
Schedule
I Stockholders
NY #1725506 v9
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This
STOCKHOLDERS’ AGREEMENT (this “Agreement”) dated as of
September 5, 2008, is entered into among the holders of Class A common stock,
par value $0.10 (the “Class A
Common Stock”) of The Xxxxxxxxx Corporation (the “Company”), the holders of
Class B common stock, par value $0.10 (the “Class B Common Stock” and,
together with the Class A Common Stock, the “Common Stock”) of the Company
identified on Schedule
I hereto (collectively, the “Stockholders” and,
individually, each a “Stockholder”), and the
Representatives (as defined below), solely in their capacity as
such.
W
I T N E S S E T H:
WHEREAS, the Company is a
corporation duly organized and existing under the laws of the State of Delaware,
with authorized voting stock of 25,226,173 shares of Common Stock consisting
of: (i) 22,604,835 shares of Class A Common Stock, entitled to one
vote per share, and (ii) 2,621,338 shares of Class B Common Stock, entitled to
ten votes per share;
WHEREAS, the Stockholders seek
to leverage all Stockholders’ skills and talents to help maximize the value of
the Company for the benefit of its stockholders by entering into this Agreement;
and
WHEREAS, in connection with
the foregoing, the Stockholders desire to provide for certain matters concerning
the voting and transfer of the Common Stock as set forth herein;
NOW, THEREFORE, in
consideration of the premises and of the mutual consents and obligations
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION
1.
DEFINITIONS
As used
in this Agreement, the following capitalized terms shall have the respective
meanings set forth below or in the Section of this Agreement referred to
below:
(a) “Affiliate” shall mean, as to
any Person, any other Person (other than a subsidiary) (a) which directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, such Person of the first part (including without
limitation any general partner, officer or director of such Person and any
venture capital or other similar investment fund now or hereafter existing which
is controlled by or under common control with one or more general partners or
shares the same management company with such Person), (b) which beneficially
owns or holds ten percent (10%) or more of any class of the voting stock of such
Person of the first part or (c) ten percent (10%) or more of the voting stock
(or in the case of a Person which is not a corporation, ten percent (10%) or
more of the equity interests) of which is beneficially owned or held by such
Person of the first part or one of its subsidiaries. The term
“control” means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise.
(b) “Approved Sale” shall have the
meaning set forth in Section 5(a).
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(c) “As-Converted, Fully-Diluted
Basis” shall mean the number of shares of Common Stock outstanding at any
time assuming (i) the conversion, exercise or exchange of all outstanding
convertible, exercisable or exchangeable securities into Common Stock, (ii) the
exercise of all outstanding warrants, options or other rights to subscribe for
or purchase any Common Stock and (iii) the exercise of all outstanding warrants,
options or other rights to subscribe for or purchase any securities convertible
into or exchangeable or exercisable for Common Stock and the conversion,
exercise or exchange of any such securities into or for Common
Stock.
(d) “Board of Directors” shall
have the meaning set forth in Section 3(a).
(e) “Common Stock” shall have the
meaning set forth in the Preamble.
(f) “Company” shall have the
meaning set forth in the Preamble.
(g) “Competitor” shall mean, for
so long as the Company shall be engaged in such businesses, a Person conducting
operations or providing services, directly or indirectly, alone, in association
with or as a stockholder, principal, agent, partner, officer, director, employee
or consultant of any other organization, in the business (i) of design and
retail sale of motorcycle apparel, protective clothing, helmets, and technical
accessories for motorcyclists; (ii) of distribution of aircraft parts or the
provision of component repair and overhaul services to commercial airlines and
air cargo carriers, fixed-base operators, corporate aircraft operators and other
aerospace companies; or (iii) any other business that the Company is actually
engaged in from time to time.
(h) “Director” shall have the
meaning set forth in Section 3(a).
(i) “Equity Security” shall mean
any capital stock (including the Common Stock and Preferred Stock) of the
Company, whether now authorized or not, and rights, options, warrants or rights
to purchase capital stock, and securities of any type whatsoever that are, or
may become, convertible into, capital stock (the number of shares of an Equity
Security which is a convertible security shall be the number of shares of such
Equity Security which would result upon the immediate conversion of such
convertible security, without regard to when such convertible security may in
fact be converted).
(j) “Exercise Closing” shall have
the meaning set forth in Section 7(c).
(k) “Exercise Date” shall have the
meaning set forth in Section 7(b).
(l) “Exercise Period” shall have
the meaning set forth in Section 7(a).
(m) “Exercising Non-Selling
Stockholder” shall have the meaning set forth in Section
4(b)(i).
(n) “Group” shall mean, in the
case of any Stockholder, such Stockholder and any Affiliate of such
Stockholder.
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(o) “HSR Act” means the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended.
(p) “Liens” shall have the meaning
set forth in Section 4(b)(ii).
(q) “Lock-Up Period” shall be from the date
of this Agreement to September 5, 2011.
(r) “Non-Selling Stockholders”
shall have the meaning set forth in Section 4(b)(i).
(s) “Offered Shares” shall have
the meaning set forth in Section 4(b)(i).
(t) “Offer Notice” shall have the
meaning set forth in Section 4(b)(i).
(u) “Option” shall have the
meaning set forth in Section 7(a).
(v) “Option Shares” shall have the
meaning set forth in Section 7(a).
(w) “Permitted Transferee” shall
have the meaning set forth in Section 4(c).
(x) “Person” shall mean any
individual, corporation, limited liability company, association, partnership,
limited partnership, trust or estate, or government (or any agency or political
subdivision thereof), or any other entity.
(y) “Phoenix Representative” shall
have the meaning set forth in Section 3(c)(i).
(z) “Phoenix Stockholder” shall
mean, collectively, Phoenix FA Holdings LLC, any Affiliate of Phoenix FA
Holdings that thereafter acquires any Shares, and their respective permitted
successors and assigns.
(aa) “Proposed Transferee” shall
have the meaning set forth in Section 4(b)(iii).
(bb) “Pro Rata Share” shall have
the meaning set forth in Section 4(b)(i).
(cc) “Proxy Term” means the period
from the date hereof until the termination of this Agreement pursuant to Section
2.
(dd) “Purchase Period” shall have
the meaning set forth in Section 4(b)(ii).
(ee) “Representative” shall have
the meaning set forth in Section 3(c)(ii).
(ff) “Sale Notice” shall have the
meaning set forth in Section 5(a).
(gg) “Selling Stockholder” shall
have the meaning set forth in Section 4(b)(i).
(hh) “Shares” shall mean (1) all
shares of Common Stock presently issued and outstanding, (2) any additional
shares of Common Stock hereafter issued and outstanding, (3) any shares of
capital stock of the Company into which such shares may be converted or for
which they may be exchanged and (4) any option, warrant or other Equity Security
of the Company entitling the holder thereof to purchase Common Stock, or
securities convertible into or exchangeable or exercisable for such Common
Stock.
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(ii) “Xxxxxxx Representative” shall
have the meaning set forth in Section 3(c)(ii).
(jj) “Xxxxxxx Stockholder” shall
mean, collectively, Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxx X.
Hercot, the Xxxxxxx Children’s Trust, the Xxxxxxx Group LLC, the
Xxxxxxx Xxxxxxx Family Foundation, Bayswater Ventures, LP, and any
Affiliate of any of the foregoing that hereinafter acquires any Shares and their
respective permitted successors and assigns.
(kk) “Third Party Purchase Period”
shall have the meaning set forth in Section 4(b)(iii).
(ll) “Transfer,” as to any Stock of
the Company, shall mean to sell, or in any other way directly or indirectly
transfer, assign, distribute, encumber or otherwise dispose of such Common
Stock, either voluntarily or involuntarily.
(mm) “Transferring Group” shall
mean any Group proposing to Transfer any Shares and which is obligated to
deliver a Offer Notice pursuant to Section 4 hereof.
SECTION
2.
DURATION
OF AGREEMENT
The
rights and obligations of the parties under this Agreement shall terminate at
such time as either the Phoenix Stockholder or the Xxxxxxx Stockholder and their
permitted successors and assigns, hold in the aggregate less than 25% of the
Shares set forth on Schedule
I.
SECTION
3. ELECTION OF DIRECTORS
(a) Election of
Directors.
(i) At any
time at which Stockholders will have the right to or will vote for or consent to
the election of directors of the Company, the Stockholders hereby agree to vote
all Shares then owned or hereafter acquired by them in favor of the election to
and maintaining a board of directors (the “Board of Directors”) consisting of at
least four (4) individuals (each a “Director”) designated in the following
manner:
(A) two (2)
Directors shall be designated by the Phoenix Stockholders (the “Phoenix Directors”), which
Phoenix Directors are currently Xxxxxx X. Xxxxxxxx and Xxxxxx Xxxxx, such
designation to be made by the provision of notice by the Phoenix Stockholders to
the Xxxxxxx Stockholders of the Director nominees designated by the Phoenix
Stockholders as the Phoenix Directors;
(B) two (2)
Directors shall be designated by the Xxxxxxx Stockholders (the “Xxxxxxx Directors”), which
Xxxxxxx Directors are currently Xxxxxxx Xxxxxxx and Xxxx Xxxxxxx, such
designation to be made by the provision of notice by the Xxxxxxx Stockholders to
the Phoenix Stockholders of the Director nominees designated by the Xxxxxxx
Stockholders as the Xxxxxxx Directors.
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(ii) The
foregoing Directors shall be elected at any annual or special meeting of
stockholders (or by written consent in lieu of a meeting of stockholders) and
shall serve until their successors are elected and qualified or until their
earlier resignation or removal. No Stockholder shall vote to remove
any Director designated pursuant to subsection (a) of this Section during his or
her term of office, with or without cause, unless the Stockholder that
designated such Director affirmatively so votes or provides written consent to
such other Stockholder to vote to remove such Director. If the
Phoenix Stockholder or the Xxxxxxx Stockholder, as the case may be, gives notice
to the other that it desires to remove a Director designated by it pursuant to
subsection (a) of this Section, such other Stockholder agrees to vote all of its
Common Stock then owned or hereafter acquired in favor of removing such Director
if a vote of holders of Common Stock is required to remove such
Director.
(iii) Any time
at which Stockholders will have the right to or will vote for or consent to the
election of a Director to fill a vacancy in the office of a Director designated
pursuant to subsection (a) of this Section, each Stockholder agrees to vote all
of its Shares then owned or hereafter acquired by it in accordance with the
direction of the Stockholder that had designated pursuant to subsection (a)(i)
the Director in whose office the vacancy exists.
(iv) The
Phoenix Directors and the Xxxxxxx Directors shall be entitled to such
compensation as Directors, including reimbursement for expenses incurred in
attending the meetings of the Board of Directors, as is determined by the Board
of Directors from time to time.
(v) The
Phoenix Stockholder and the Xxxxxxx Stockholder shall request that the Board of
Directors grant observer rights to two individuals to be designated from time to
time by the Phoenix Stockholder and two individuals to be designated from time
to time by the Xxxxxxx Stockholder. To the extent that the Board of
Directors grants such observer rights, each of the Phoenix Stockholder and
Xxxxxxx Stockholder agrees that it shall not oppose or seek the removal of any
observer designated by the other or seek the reduction of the other’s observer
rights. To the extent that the Board of Directors grants such
observer rights to one of the Phoenix Stockholder or the Xxxxxxx Stockholder but
not the other, the Stockholder receiving such grant shall nominate as an
observer one designee of the other Stockholder until such time as the other
Stockholder has been granted equal observer rights.
(b) Other Matters Subject to
Stockholder Vote. The Stockholders further agree that with
respect to any other proposal on which stockholders have the right to or will
vote on or consent to, including the election of each Director (other than the
Phoenix Directors and the Xxxxxxx Directors, which is subject to subsection (a)
of this Section 3), the Stockholders (through their respective Representatives)
will meet and confer (which may be in person, by phone, or in writing) for a
reasonable amount of time prior to the date of the stockholder vote or consent
on such proposal, in an effort to agree on how their respective Shares would be
voted (whether for, against or withheld), or if such Shares would consent with
respect to such proposal. Each Stockholder shall be notified by its
respective Representative as to whether an agreement was reached and, if an
agreement was reached, how the Shares were agreed to be voted or if consent
would be given. The Phoenix Representative and the Xxxxxxx
Representative shall, pursuant to the proxy granted under Section 3(c), vote the
Shares of the Phoenix Stockholder and the Xxxxxxx Stockholder, respectively, or
consent with respect to such Shares in accordance with such
agreement. With respect to each proposal as to which no agreement was
reached, each of the Phoenix Representative and the Xxxxxxx Representative
agrees not to vote or consent with respect to, respectively, any of the Phoenix
Stockholder’s or the Xxxxxxx Stockholder’s Shares (and each Stockholder agrees
that it shall not vote or consent with respect to any of its
Shares).
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(c) Proxy.
(i) Each
Stockholder that is a Phoenix Stockholder, by this Agreement, hereby constitutes
and appoints Xxxxxx X. Xxxxxxxx and Xxxxxx Xxxxx, as their representative (the
“Phoenix
Representative”) with full power of substitution, during and for the
Proxy Term, as the Phoenix Stockholder’s true and lawful attorney and grants
each Phoenix Representative an irrevocable proxy coupled with power, for and in
the Phoenix Stockholder’s name, place and stead, to vote each Share owned by
such Stockholder as such Stockholder’s proxy, at every meeting of the
stockholders of the Company or any adjournment thereof or in connection with any
written consent of the Company’s stockholders. Such Stockholder
intends the foregoing proxy to be, and it shall be, irrevocable and coupled with
an interest during the Proxy Term and hereby revokes any proxies previously
granted by the Stockholder with respect to the Shares.
(ii) Each
Stockholder that is a Xxxxxxx Stockholder, by this Agreement, hereby constitutes
and appoints Xxxxxxxx Xxxxxxx and Xxxx Xxxxxxx, as its representative (the
“Xxxxxxx
Representative” and, together with the Phoenix Reprsentative, the “Representatives” or each
individually a “Representative”) with full
power of substitution, during and for the Proxy Term, as the Stockholder’s true
and lawful attorney and hereby grants each Xxxxxxx Representative an irrevocable
proxy coupled with power, for and in the Xxxxxxx Stockholder’s name, place and
stead, to vote each Share owned by such Stockholder as such Stockholder’s proxy,
at every meeting of the stockholders of the Company or any adjournment thereof
or in connection with any written consent of the Company’s
stockholders. Such Stockholder intends the foregoing proxy to be, and
it shall be, irrevocable and coupled with an interest during the Proxy Term and
hereby revokes any proxies previously granted by the Stockholder with respect to
the Shares.
(iii) All of
the Stockholders agree to vote their Shares in accordance with this Section
3. If any Stockholder or its Representative fails or refuses to vote
the Shares as required by this Section 3, then the Xxxxxxx Representative (in
the case of a Phoenix Stockholder or Phoenix Representative failure or refusal)
or the Phoenix Representative (in the case of a Xxxxxxx Stockholder or Xxxxxxx
Representative failure or refusal) shall have an irrevocable proxy of indefinite
duration pursuant to the provisions of Section 212 of the Delaware General
Corporation Law, coupled with an interest, to so vote those Shares in accordance
with this Section 3, and each Phoenix Stockholder and Xxxxxxx Stockholder hereby
grants to the others’ Representative such irrevocable proxy.
(iv) The
Stockholders agree not to enter into any agreement or understanding with any
person or entity or take any action during the Proxy Term which will permit any
person or entity to vote or give instructions to vote the Common Stock in any
manner inconsistent with the terms of this Section 3. The
Stockholders further agree to take such further action and execute and deliver,
and cause others to execute and deliver such other instruments as may be
necessary to effectuate the intent of this Agreement, including without
limitation, proxies and other documents permitting, as applicable, the Phoenix
Representative or the Xxxxxxx Representative, to vote the Common Stock or to
direct the record owners thereof to vote the Common Stock in accordance with
this Agreement. Without limiting the foregoing, each Stockholder will
use commercially reasonable efforts to, and will instruct the record owner of
the Common Stock to, deliver to, as applicable, the Phoenix Representative or
the Xxxxxxx Representative, a duly executed Irrevocable Proxy in the form
attached hereto as Exhibit A not later
than 5 business days after the date hereof.
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SECTION
4.
TRANSFER
RESTRICTIONS; RIGHTS OF FIRST OFFER
(a) Limitations. Each
Stockholder hereby agrees that such Stockholder shall not at any time during the
Lock-Up Period Transfer any Shares except by Transfer to a Permitted Transferee
in accordance with Section 4(c).
(b) Procedures on Sale of
Shares. Except as permitted under Section 4(c), each
Stockholder agrees that such Stockholder, and any Transferring Group of which
such Stockholder is a member (A) shall not Transfer any Shares on or before the
end of the Lock-Up Period, and (B) thereafter during the term of this Agreement,
shall not Transfer any Shares except in accordance with the following
procedures:
(i) Right of First
Offer. The Phoenix Stockholder or the Xxxxxxx Stockholder, as
applicable (the “Selling
Stockholder”) may offer all but not less than all of its Shares (the
“Offered Shares”) in
the Company to the other Stockholders (the “Non-Selling Stockholders”),
at a price, and on the terms and conditions, specified in the notice (the “Offer Notice”) to the
Non-Selling Stockholders at any time (but not more than once in any 12-month
period) following the Lock-Up Period. Each Non-Selling Stockholder
may (directly or acting through its Representative), within 45 days of receipt
of the Offer Notice, notify (such notice, the “Exercise Notice”) the Selling
Stockholder’s Representative whether it wishes to purchase all (but not less
than all) of the Selling Stockholder’s Offered Shares. In the event
that more than one Non-Selling Stockholder shall send an Exercise Notice (each
an “Exercising Non-Selling
Stockholder”), each Exercising Non-Selling Stockholder shall purchase its
Pro Rata Share of such Offered Shares, where “Pro Rata Share” shall mean
that number of Shares determined by multiplying the total number of Offered
Shares by a fraction (A) the numerator of which is the aggregate number of
Shares then held by such Exercising Non-Selling Stockholder on an As-Converted,
Fully-Diluted Basis and (B) the denominator of which is the total number of
Shares then held by all Exercising Non-Selling Stockholders on an As-Converted,
Fully-Diluted Basis. By sending an Exercise Notice to the Selling
Stockholder, the Exercising Non-Selling Stockholder commits itself to acquire
the Offered Shares on the terms and conditions set forth on the Offer Notice and
such Exercising Non-Selling Stockholder’s Shares shall be used as collateral to
secure such Exercising Non-Selling Stockholder’s obligation to acquire the
Offered Shares within the Purchase Period (as defined below).
(ii) Closing. The
closing of any sale of Offered Shares under the terms of Section 4(b)(i) shall
take place within 120 days after the expiration of the 45-day period set forth
in Section 4(b)(i) (the “Purchase Period”) at the
office of the Phoenix Stockholder’s counsel on a mutually satisfactory business
day or at such other location or on such other date as shall be mutually
satisfactory to the Selling Stockholder and all Exercising Non-Selling
Stockholders, in their sole discretion). The Purchase Period may be
extended by up to a total of 60 days by the Exercising Non-Selling Stockholders
upon notice to the Selling Stockholder if the Exercising Non-Selling
Stockholders, despite diligent efforts, are unable to complete the acquisition
of all of the Offered Shares within the original 120-day period; provided that the Exercising
Non-Selling Stockholders set forth in such notice the grounds for such delay and
provide evidence reasonably satisfactory to the Selling Stockholder that the
Exercising Non-Selling Stockholders are pursuing the closing diligently and in
good faith. Delivery of certificates or other instruments evidencing
such Offered Shares duly endorsed for transfer, and free and clear of all liens,
claims and encumbrances (“Liens”), to the Exercising
Non-Selling Stockholders shall be made on the closing date against payment of
the purchase price therefor in immediately available funds or by certified or
bank check. If the sale of the Offered Shares is not consummated
within the Purchase Period, including any extension permitted hereunder by
reason of a failure of any Exercising Non-Selling Stockholder, the Selling
Stockholder shall be entitled to specific performance or damages, as applicable,
from the Exercising Non-Selling Stockholders on a joint and several
basis.
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(iii) If the
Non-Selling Stockholders do not deliver an Exercise Notice or do not agree to
purchase all of the Selling Stockholders’ Shares, or if the Exercising
Non-Selling Stockholders do not consummate the purchase of the Offered Shares
within the Purchase Period (including any extension thereof pursuant to Section
4(b)(ii)) other than by reason of a failure of the Selling Stockholder to
consummate such sale, the Selling Stockholder may offer and sell all (but not
less than all) of its Shares in the Company and, pursuant to Section 5, all of
the Shares in the Company held by the Non-Selling Stockholders (including the
Exercising Non-Selling Stockholders), to one or more third parties (each a
“Proposed Transferee”)
within the 180 day period (the “Third Party Purchase Period”)
after (A) the expiration of the 45-day period set forth in Section 4(b)(i) if no
Non-Selling Stockholder sends an effective Exercise Notice within such 45-day
period or (B) if an effective Exercise Notice is sent during such 45-day period,
the expiration of the Purchase Period (including any extension thereof pursuant
to Section 4(b)(ii)) unless the sale of the Offered Shares to the Exercising
Non-Selling Stockholders is consummated within such Purchase Period, at a price
not less than and on terms and conditions no less favorable to the Selling
Stockholder than those specified in the Offer Notice; provided that, if a Proposed
Transferee is a Competitor, the Selling Stockholder shall exercise the same care
in connection with such offer and sale to such Proposed Transferee as an
ordinarily prudent person in the operation of his own business, as if such
Selling Stockholder were the Company and provided further that the
Selling Stockholder has provided a Sale Notice to each Non-Selling Stockholder
containing the same information as specified in Section 5 (except stating
whether or not the Selling Stockholder has elected to exercise its rights under
Section 5) not less than 60 days prior to the expiration of the Third Party
Purchase Period. In the event that the Offered Shares are not sold by
the Selling Stockholder during the Third Party Purchase Period, the right of the
Selling Stockholder to sell the Offered Shares under this Section 4 shall expire
and the obligations of Sections 4(b)(i)-(iii) shall be reinstated; provided that, in accordance
with Section 4(b)(i), no Selling Stockholder shall be entitled to initiate an
offer pursuant to Section 4(b)(i) more than once in any 12-month
period.
(iv) To the
extent the Selling Stockholder does not exercise its “drag along” rights under
Section 5, then, upon the request of the Non-Selling Stockholders’
Representative, the Selling Stockholder shall require any purchaser or other
transferee of its Shares pursuant to this Section 4(b) who is not a Stockholder
to agree in writing in advance of the Transfer to become a party to and be bound
by and comply with all applicable provisions of this Agreement as (A) a
Stockholder and (B) a Phoenix Stockholder (if a purchaser from or transferee of
any Phoenix Stockholder) or a Xxxxxxx Stockholder (if a purchaser from or
transferee of any Xxxxxxx Stockholder).
8
(c) Permitted
Transferees. Notwithstanding anything to the contrary in this
Agreement, any Stockholder may Transfer at any time and from time to time, all
or part of such Stockholder’s Shares to: (i) his or her
ancestors, descendants, siblings or spouse, any executor or administrator of
his/her estate, or to a custodian, trustee (including a trustee of a voting
trust), executor or other fiduciary primarily for the account of such
Stockholder or his/her ancestors, descendants, siblings or spouse, (ii)
any executor or other fiduciary primarily for the account of a non-profit
organization or directly to a non-profit organization, (iii) to the extent that
such Stockholder is a corporation, limited liability company or other entity, to
the members or shareholders of, or other investors or Persons holding capital
in, such Stockholder, (iv) to any Person in connection with any consolidation or
reorganization of such Stockholder directly or indirectly with or into one or
more other investment vehicles, (v) to the Company, if effected pursuant to any
redemption right, including without limitation with respect to a redemption at
the request of such Stockholder pursuant to any agreement regarding the
repurchase of Shares by the Company or its assignees from an employee or
consultant upon the termination of his or her employment or consulting
relationship with the Company, (vi) to any Person in connection with any
Approved Sale, or (vii) to any Affiliate of such Stockholder (each of the
Persons referenced in the foregoing subsections (i) and (vii) being a “Permitted Transferee”); provided that if a Permitted
Transferee is a Competitor, the Stockholder making the Transfer must exercise
the same care in connection therewith as an ordinarily prudent person in the
operation of his own business, as if such Stockholder were the
Company. Any Transfer otherwise permitted by this Agreement shall be
further subject to and conditioned upon full compliance by the transferring
Stockholder and the Permitted Transferee with each of the following
conditions: (i) each Permitted Transferee (who may be
located within or without the United States) or his, her or its legal
representative shall have executed documents in form and substance reasonably
satisfactory to the non-transferring Stockholders (which may include a joinder
to this Agreement), assuming the obligations of the transferring Stockholder
under this Agreement with respect to the transferred Shares; (ii) the
transferring Stockholder and the Permitted Transferee shall execute such other
documents as the non-transferring Stockholders may reasonably request (or as may
be required by law) in order to demonstrate compliance of any such Transfer with
the provisions of this Agreement and applicable law; (iii) at the request of the
non-transferring Stockholders, the non-transferring Stockholders receive an
opinion of counsel reasonably acceptable to the non-transferring Stockholders
(who may be counsel for any Stockholder), in form and substance satisfactory to
the non-transferring Stockholders, that such Transfer does not violate any
securities or other applicable laws; (iv) the Permitted Transferee shall pay all
filing and recording fees, if any, and all reasonable expenses, including,
without limitation, reasonable counsel fees and expenses incurred by the
non-transferring Stockholders in connection with the Transfer; (v) the Permitted
Transferee shall acquire the transferred Shares for its own account for
investment and not with a view to the resale or distribution thereof and, by its
acceptance of the Shares and the assumption of the obligations of the
transferring Stockholder hereunder, the Permitted Transferee shall be deemed to
so represent and warrant, and the Permitted Transferee will only Transfer the
acquired transferred Shares to a Person who so similarly represents and
warrants; and (vi) the transferring Stockholder shall obtain from the Permitted
Transferee such other representations and warranties as the non-transferring
Stockholders may require.
NY #1725506
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(d) Notwithstanding
anything in this Agreement to the contrary, no Transfer of any Shares or portion
thereof by a Stockholder shall be made (i) to a Person who, in accordance with
applicable law, lacks the legal capacity to own, or otherwise is prohibited from
owning, any such Shares in the Company by reason of minority, incompetence or
otherwise; (ii) to a Person otherwise prohibited by applicable law from entering
into such transaction or holding such Shares; or (iii) which violates any other
provision of this Agreement, and any such Transfer shall be void ab initio.
SECTION
5.
DRAG-ALONG
RIGHTS
(a) Approved
Sale. If at any time after the Lock-Up Period, (i) the Selling
Stockholder proposes to sell to a third party who is not an Affiliate of the
Company or any Stockholder all of the Shares held by the Stockholders (an “Approved Sale”), and (ii) the
Selling Stockholder has complied with the provisions of Section 4 and the
Non-Selling Stockholders have not elected to purchase 100% of such Selling
Stockholder’s Offered Shares pursuant to Section 4(b), the Selling Stockholder
may, in its sole discretion, notify (the “Sale Notice”) the Non-Selling
Stockholders, in writing, of the price and the other terms and conditions
(including the identity of the proposed purchaser) of such Approved Sale, which
such price and other terms and conditions shall be no less favorable to the
Stockholders than the terms and conditions set forth in the Offer Notice, and
stating that such Selling Holder elects to exercise its rights under this
Section 5. Each Non-Selling Stockholder will take all necessary and
desirable actions in connection with the consummation of such Approved Sale,
and, within 20 business days of the receipt of such Sale Notice (or such longer
period of time as the Selling Stockholder shall designate in such Sale Notice),
the Non-Selling Stockholders shall cause all of their Shares to be sold to the
purchaser identified in the Sale Notice on the same terms and conditions and for
the same per share consideration as the Shares being sold by the Selling
Stockholder (with appropriate adjustments for differences in conversion rates,
liquidation preferences and other rights as may be applicable)
(b) Cooperation and
Consent. In furtherance of, and not in limitation of the
foregoing, in connection with any such Approved Sale, and provided that the
terms and conditions of the Approved Sale applicable to the Non-Selling
Stockholders are the same as for the Selling Stockholder (with appropriate
adjustments for differences in conversion rates, liquidation preferences and
other rights as may be applicable), each Non-Selling Stockholder will (i)
consent to and raise no objections against such Approved Sale or the process
pursuant to which it was arranged, (ii) waive any dissenters’ rights and other
similar rights, (iii) execute and deliver all instruments and documents as
reasonably directed by the Selling Stockholder and (iv) otherwise take all
necessary action, including, without limitation, entering into any agreement
reflecting the terms of such Approved Sale, surrendering stock
certificates, giving any customary and reasonable representations and warranties
given by the Selling Stockholder and executing and delivering any certificates
or other documents, reasonably requested by the Selling Stockholder and its
counsel, to cause the Stockholders to consummate such Approved Sale; provided, however, that no Stockholder
shall be obligated in connection with such Approved Sale to indemnify the
prospective transferee in an amount in excess of the net proceeds paid to such
Stockholder in connection with such Approved Sale (other than as a result of a
breach of the representation with respect to its ownership of, and authority to
transfer, such Shares free and clear of all Liens, as to which no such
limitation will apply). All Stockholders will bear their pro rata
share (based on their respective stock ownership in the Company and determined
as of the closing of any Approved Sale) of the costs and expenses incurred in
connection with any Approved Sale. Costs incurred by any Stockholder
on its own behalf will not be shared by other Stockholders.
NY #1725506
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(c) Rescission. Any
such notice of Approved Sale may be rescinded by the Selling Stockholder by
delivering written notice thereof to all of the Non-Selling Stockholders.
SECTION
6.
RIGHT
OF PARTICIPATION IN SALES
(a) Co-Sale
Right. . If (i) any Offered Shares are not
purchased pursuant to Sections 4(b)(i)-(ii) above and thereafter are to be sold
by the Selling Stockholder to a Proposed Transferee (the “Proposed Transfer”) pursuant
to Section 4(b)(iii) and (ii) the Selling Stockholder does not exercise its
“drag along” rights under Section 5, then the Selling Stockholder shall provide
a Sale Notice to each Non-Selling Stockholder containing the same information as
specified in Section 5 (except stating that the Selling Stockholder has elected
not to exercise its rights under Section 5), at least 45 days prior to the
consummation of the Proposed Transfer. Each Non-Selling Stockholder
shall have the right, as a condition to such Proposed Transfer, to participate
in such Proposed Transfer and Transfer to the Proposed Transferee all, but not
less than all, of such Non-Selling Stockholder’s Shares as part of the Proposed
Transfer, at the same purchase price and on the same terms and conditions
specified in the applicable Sale Notice.
(b) Notice of Intent to
Participate. If a Non-Selling Stockholder wishes to so
participate in any Transfer under this Section 6, it shall notify the Selling
Stockholder (through its Representative) and the other Non-Selling Stockholders
(through their Representative) in writing of such intention as soon as
practicable, but in any event no later than 15 days, after such Non-Selling
Stockholder’s receipt of the Sale Notice pursuant to Section
6(a). Upon giving such notice such Non-Selling Stockholder shall be
deemed to have effectively exercised the right to participate in such Proposed
Transfer.
(c) Transfer to Proposed
Transferee. The Selling Stockholder and each participating
Non-Selling Stockholder shall Transfer to the Proposed Transferee the Shares
proposed to be Transferred to the Proposed Transferee, at not less than the
price and upon other terms and conditions, if any, not more favorable to the
Proposed Transferee than those in the Sale Notice provided under Section 6(a);
provided, however, that any Transfer of
less than all of such Shares to the Proposed Transferee shall be made from the
Selling Stockholder and each participating Stockholder pro rata based upon the
relative number of the Shares that the Selling Stockholder and each
participating Stockholder are otherwise entitled to sell pursuant to Section
6(a).
(d) Lapse of Restrictions. Shares Transferred to any Proposed Transferee pursuant to this Section 6 shall not be subject to the restrictions imposed by this Agreement unless a Non-Selling Stockholder that does not elect to participate in the Proposed Transfer requests that such Shares remain subject to this Agreement, in which case the Selling Stockholder and the transferring Non-Selling Stockholders shall require that any Shares Transferred to any Proposed Transferee pursuant to this Section 6 shall remain subject to the restrictions imposed by this Agreement.
NY #1725506
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SECTION 7. XXXXXXX
STOCKHOLDER OPTION ON SHARES OWNED BY PHOENIX STOCKHOLDER
(a) The
Phoenix Stockholder hereby grants to the Xxxxxxx Stockholder an option (the
“Option”) to purchase
from the Phoenix Stockholder, on the terms hereof, a number of shares of Class A
Common Stock equal to up to 20% of the shares of Series A Common Stock owned by
the Phoenix Stockholder on the date hereof, as set forth in Schedule I hereto,
plus up to 20% of any Shares hereafter acquired by the Phoenix Stockholder
(collectively, the “Option
Shares”), on a relevant Exercise Date during the period (the “Exercise Period”) from the
date hereof until September 5, 2009.
(b) The
Option is exercisable only by the Xxxxxxx Representative on behalf of the
Xxxxxxx Stockholder, and may be exercised by the Xxxxxxx Representative, in
whole or in part, at any time, or from time to time (the date of any such
exercise being referred to as an “Exercise Date”), during the
Exercise Period. The Option may be repeatedly exercised by the
Xxxxxxx Representative on behalf of the Xxxxxxx Stockholder, and there shall be
no limit on the number of times the Option may be exercised; provided, however, that (a) the Option
cannot be exercised for more than, in the aggregate, the total number of Option
Shares and (b) each exercise of the Option for fewer than the number of Option
Shares then remaining available under the Option shall be for at least 10,000
Shares.
(c) In
order to exercise the Option, the Xxxxxxx Representative shall give written
notice to the Company of such exercise, specifying the number of Option Shares
to be purchased, the Stockholders to whom the Option Shares are to be delivered
and the number of Option Shares to be delivered to each such Stockholder, and
the place, time and date of the closing of such purchase (the “Exercise Closing”), which
date shall not be less than two business days nor more than ten business days
from the date on which such notice is delivered (or such later date as necessary
in order to obtain any governmental clearance or the termination of any
applicable waiting period under the HSR Act.
(d) At
such exercise Closing, the Phoenix Stockholder shall deliver all of the Option
Shares to be purchased by delivery of a certificate or certificates evidencing
such Option Shares in the denominations and to the Stockholders designated by
the Phoenix Representative in the notice required under subsection (c) of this
Section 7.
(e) The
purchase price for any Option Shares purchased pursuant to an exercise of the
Option shall be equal to (i) the price paid by the Phoenix Stockholder for such
Option Shares, plus (ii) an amount
determined by the Phoenix Stockholder, which amount shall be equal to the total
costs and expenses, including legal fees, incurred by the Phoenix Stockholder in
connection with the acquisition of such Option Shares (including, as applicable,
the costs and expenses related to the tender offer by the Phoenix Stockholder
for shares of Class A Common Stock of the Company that expired on December 18,
2007, pursuant to which the Phoenix Stockholder purchased 4,701,080 shares of
Class A Common Stock of the Company), plus (iii) interest
on the amount equal to the sum of (i) and (ii) at the prime rate from and
including the date the Phoenix Stockholder acquired such Option Shares, to and
excluding the date of the applicable Exercise Closing. The Phoenix
Stockholder shall, at each Exercise Closing, deliver the applicable Option
Shares against payment of the purchase price therefore in immediately available
funds or by certified or bank check.
NY #1725506
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(f) The
Xxxxxxx Stockholder’s obligation to purchase, and the Phoenix Stockholder’s
obligation to sell, any Option Shares upon the exercise of the Option is subject
to the satisfaction or waiver as of the applicable Exercise Closing of the
following conditions:
(i) The
Phoenix Stockholder and the Xxxxxxx Stockholder shall have obtained or made all
consents, approvals, orders, licenses, permits and authorizations of, and
registrations, declarations and filings with, any governmental authority or any
other Person required to be obtained or made by or with respect to it in
connection with such purchase or sale, as applicable (including the expiration
of any applicable waiting period under the HSR Act).
(ii) No
injunction, decree or order of any governmental authority shall be in effect as
of the applicable Exercise Closing, and no lawsuit, claim, proceeding or
investigation shall be pending or threatened by any governmental authority as of
such Exercise Closing, which would restrain or prohibit the Transfer of the
applicable Option Shares pursuant to the exercise of the Option.
(iii) The
Transfer of the applicable Option Shares shall not violate, or cause the
violation of, any applicable law or regulations.
The
failure to satisfy (or waive) any of the foregoing conditions as of any Exercise
Closing and the resulting cancellation of the purchase and sale of the Option
Shares proposed to be sold by the Phoenix Stockholder on such date shall not
prohibit the Xxxxxxx Representative, on behalf of the Xxxxxxx Stockholder, from
again exercising the Option.
SECTION
8.
LEGEND
To the
extent possible, the Stockholder shall cause each certificate or other document
representing their Shares to bear a legend in substantially the
following form until such time as such Shares are no longer subject to the
provisions hereof:
THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
TERMS AND CONDITIONS OF A STOCKHOLDERS’ AGREEMENT DATED AS OF SEPTEMBER 5, 2008,
AMONG CERTAIN HOLDERS OF THE OUTSTANDING CAPITAL STOCK OF THE XXXXXXXXX
CORPORATION, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE
THEREWITH.
SECTION
9.
SEVERABILITY
In case any
provision of this Agreement shall be invalid, illegal or unenforceable, by any
court of law, the remaining provisions shall be severable and enforceable to the
maximum extent possible in accordance with their terms.
SECTION
10.
EXPENSES
The parties shall
share equally and shall be equally responsible for the payment of all costs and
expenses, including legal fees and expenses, whether incurred by the Phoenix
Stockholder or the Xxxxxxx Stockholder (but excluding expenses paid by third
parties), in connection with the preparation of this Agreement. All
costs and expenses, including legal fees and expenses, of any proposed Transfer
of Shares hereunder shall be born by each Stockholder that proposes to Transfer
any or all of its Shares in such transaction (including any proposed Transfer
pursuant to the exercise of any “drag along,” “tag-along” or other rights by
such Stockholder or any other Stockholder, and whether or not such Transfer is
actually consummated) pro
rata, in the same proportion as the number of Shares proposed to be
Transferred by such Stockholder in such transaction bears to the total number of
Shares proposed to be Transferred in such transaction by all Stockholders; provided that (a) the Selling
Stockholder shall be liable for all such costs and expenses related to the
failure to consummate any proposed sale of Offered Shares pursuant to Section
4(b)(ii) that is not consummated for any reason, other than by reason of a
failure of the Exercising Non-Selling Stockholders, and (b) the Exercising
Non-Selling Stockholders shall be jointly and severally liable for all such
costs and expenses related to the failure to consummate any sale of Offered
Shares pursuant to Section 4(b)(ii) by reason of a failure of any Exercising
Non-Selling Stockholder to consummate such sale.
NY #1725506
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SECTION
11.
GOVERNING
LAW
This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York. Each of the parties hereto
irrevocably consents to the jurisdiction and venue of any court within the State
of New York, in connection with any matter based upon or arising out of this
Agreement or the matters contemplated herein, and agrees that process may be
served upon them in any manner authorized by the laws of the State of New York
for such persons.
SECTION
12.
BENEFITS
OF AGREEMENT
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns/legal representatives and
heirs.
SECTION
13.
ADDITIONAL
PARTIES
For so
long as this Agreement is in effect, each Stockholder:
(a) Shall
cause any Affiliate of such Stockholder which acquires any Shares in any
transaction to become a party hereunder and remain subject to the duties,
obligations and restrictions imposed by this Agreement as (i) a Stockholder and
(ii) if an Affiliate of the Phoenix Stockholder, the Phoenix Stockholder, and if
an Affiliate of the Xxxxxxx Stockholder, the Xxxxxxx Stockholder;
and
(b) Upon the
request of any other Stockholder that remains a party hereto, shall cause any
Person which acquires any Shares from such Stockholder to become a party
hereunder.
SECTION
14.
FAILURE
TO COMPLY; INJUNCTIVE RELIEF
Any
Transfer not made in compliance with the requirements of this Agreement shall be
null and void ab
initio. It is acknowledged that it will be impossible to
measure the damages that would be suffered by the Stockholders if a party hereto
fails to comply with the provisions of this Agreement and that in the event of
any such failure, the Stockholders will not have an adequate remedy at
law. The Stockholders shall, therefore, be entitled, without the
necessity of posting a bond, to obtain specific performance of such defaulting
party’s obligations hereunder and to obtain immediate injunctive or other
equitable relief, in addition to any other remedies available at law or in
equity. Such defaulting party shall not argue, as a defense to any proceeding
for such specific performance or injunctive relief, that the Stockholders have
an adequate remedy at law.
NY #1725506
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SECTION
15.
NOTICES
All
notices, requests, consents and other communications required or permitted
hereunder shall be in writing and shall be delivered either by hand, by
messenger or by recognized overnight courier (with signature required), or sent
via facsimile, computer mail or other electronic means from which a record may
be created, addressed to the applicable Stockholder at its address set forth in
Schedule I
hereto, or such other address as such Stockholder may specify by notice to each
other Stockholder. All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed effectively
given when actually received or when receipt is refused, it being understood by
the parties that a confirmation of receipt for the addressee provided by a
recognized overnight courier service shall constitute actual receipt by such
addressee for purposes of such notice.
SECTION
16.
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 party against whom the enforcement of any modification,
change, discharge or termination is sought.
SECTION
17.
CAPTIONS
The
captions herein are inserted for convenience only and shall not define, limit,
extend or describe the scope of this Agreement or affect the construction
hereof.
SECTION
18.
NOUNS
AND PRONOUNS
Whenever
the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
names and pronouns shall include the plural and vice-versa.
SECTION
19.
MERGER
PROVISION
This
Agreement constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and understandings of the parties in connection therewith.
SECTION
20.
COUNTERPARTS
This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same instrument. Delivery of an executed counterpart by fax
shall be effective as delivery of a manually executed counterpart.
SECTION
21.
NO
PRIOR AGREEMENTS
No prior
agreements, whether oral or written relating to any of the subject matter herein
exists between or among any of the parties hereto.
SECTION
22.
ADJUSTMENTS
FOR STOCK SPLITS, ETC.
Wherever in
this Agreement there is a reference to a specific number of shares of Common
Stock or other capital stock of the Company of any class or series, then, upon
the occurrence of any subdivision, combination or stock dividend of such class
or series of stock, the specific number of shares so referenced in this
Agreement shall automatically be proportionally adjusted to reflect the effect
on the outstanding shares of such class of stock by such subdivision,
combination or stock dividend.
SECTION
23.
RULES
OF USAGE
In this
Agreement, unless a clear intention appears otherwise: (a) the
singular number includes the plural number and vice versa; (b) reference to any
Person includes such
NY #1725506
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Person’s
successors and assigns but, if applicable, only if such successors and assigns
are not prohibited by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually; (c)
reference to any agreement, document or instrument means such agreement,
document or instrument as amended or modified and in effect from time to time in
accordance with the terms thereof; (d) reference to any law means such law
as amended, modified, codified, replaced or reenacted, in whole or in part, and
in effect from time to time, including rules and regulations promulgated
thereunder; (e) “hereunder,” “hereof,” “hereto,” and words of similar import
shall be deemed references to this Agreement as a whole and not to any
particular Section or other provision hereof; (f) “including” (and with
correlative meaning “include”) means including without limiting the generality
of any description preceding such term; (g) “or” is used in the inclusive sense
of “and/or”; (h) with respect to the determination of any period of time, “from”
means “from and including” and “to” means “to but excluding”; (i) references to
documents, instruments or agreements shall be deemed to refer as well to all
addenda, exhibits, schedules or amendments thereto; (j) article and section
headings herein are for convenience only and shall not affect the construction
hereof; and (k) references to any sections of this Agreement shall include every
subsection thereof unless otherwise expressly excluded.
[Remainder of page intentionally left
blank]
NY #1725506 v9
16
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the day, month and year first
above written.
| PHOENIX STOCKHOLDER | |
| PHOENIX FA HOLDINGS LLC, | |
| By: SG Phoenix Ventures IV LLC, | |
| its Managing Member | |
| By: _/s/ Xxxxxx Goren________ | |
| Xxxxxx Xxxxx | |
| Member | |
| XXXXXXX STOCKHOLDER | |
| ___/s/ Xxxxxxx X. Steiner____ | |
| Xxxxxxx X. Xxxxxxx | |
| __/s/ Xxxx X. Steiner_____ | |
| Xxxx X. Xxxxxxx | |
| __/s/ Xxxxxxxx Steiner___ | |
| Xxxxxxxx Xxxxxxx | |
| __/s/ Xxxxxxx X. Hercot__ | |
| Xxxxxxx X. Hercot | |
| THE XXXXXXX CHILDREN’S TRUST | |
| By: ___/s/ Xxxx X. Steiner______ | |
| Xxxx X. Xxxxxxx | |
| Trustee |
| THE XXXXXXX GROUP LLC | |
| By: ___/s/ Xxxx X. Steiner_______ | |
| Xxxx X. Xxxxxxx | |
| Co-Manager | |
| XXXXXXX XXXXXXX FAMILY FOUNDATION | |
| By: __/s/ Xxxxxxx X. Steiner____ | |
| Xxxxxxx X. Xxxxxxx | |
| President and Director | |
| BAYSWATER VENTURES, LP | |
| By: Jorvain Limited, | |
| its General Partner | |
| By: __/s/ Xxxx X. Steiner_____ | |
| Xxxx X. Xxxxxxx | |
|
Director
|
|
| PHOENIX REPRESENTATIVE | |
| _____/s/ Xxxxxx Sassower_ | |
| Xxxxxx Xxxxxxxx, | |
| as Phoenix Representative | |
| ______/s/ Xxxxxx Goren___ | |
| Xxxxxx Xxxxx, | |
| as Phoenix Representative |
| XXXXXXX REPRESENTATIVE | |
| ____/s/ Xxxx X. Steiner_________ | |
| Xxxx X. Xxxxxxx, | |
| as Xxxxxxx Representative | |
| ____/s/ Xxxxxxxx Steiner_______ | |
| Xxxxxxxx Xxxxxxx, | |
| as Xxxxxxx Representative | |
EXHIBIT
A
Form
of Irrevocable Proxy
The undersigned (the “Holder”) hereby irrevocably
appoints each of
[ ]
(the “Xxxxxxx
Representative”/“Phoenix Representative”)
having an address at
[ ]
as the attorney and proxy of the undersigned, with full power of substitution
and revocation, to vote in such manner as such attorney and proxy or his
substitute shall in his sole discretion deem proper, and otherwise act with
respect to all of the Class A Common Stock, par value $0.10 per share (the
“Class A Common
Stock”), and Class B Common Stock, par value $0.10 per share (the “Class B Common Stock”), of
The Xxxxxxxxx Corporation (the “Company”) now or hereafter
owned by the undersigned, including, but not limited to all Class A Common Stock
and Class B Common Stock of the Company issuable upon exercise or conversion of
any options, warrants, common stock, preferred stock or other securities, or
upon declaration by the Company of any stock splits or stock dividends, which
the undersigned is entitled to vote at any meeting (whether annual or special
and whether or not adjourned) of the Company or otherwise, to express consent
without a meeting and to otherwise represent the Class A Common Stock and Class
B Common Stock.
This Irrevocable Proxy shall be binding
upon the Holder and such Holder’s representatives, administrators, successors
and assigns. In pursuance of this Irrevocable Proxy, the Holder
shall execute, acknowledge and deliver, or will cause to be executed,
acknowledged and delivered, all such further instruments as may be required to
grant and confirm to the [Xxxxxxx/Phoenix] Representative its proxy for the
securities.
In the event that this Irrevocable
Proxy is held to be invalid, the Holder agrees to vote or execute consents as to
all the Shares in accordance with the [Xxxxxxx/Phoenix] Representative’s
instructions.
The undersigned for itself and its
representatives, administrators, successors and assigns (each a “Releasing Party”) hereby
waives, releases and discharges and promises never to assert any claim or charge
which any Releasing Party may have against the [Xxxxxxx/Phoenix] Representative
arising out of or related to any action or failure to act (including but not
limited to any vote or consent or failure to vote or consent) of the
[Xxxxxxx/Phoenix] Representative under this irrevocable proxy except, and only
to the extent, that such claim or charge arises directly from the bad faith or
willful misconduct of the [Xxxxxxx/Phoenix] Representative.
This Irrevocable Proxy is coupled with
an interest and shall be irrevocable to the full extent permitted by law,
including Section 609(f)(1) of the New York Business Corporation Law, and shall
revoke any other proxy granted by the undersigned at any time with respect to
such securities.
If any provision of this Irrevocable
Proxy shall be determined to be illegal or unenforceable by a court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms. This Irrevocable Proxy shall be governed by the laws of the
State of New York.
IN WITNESS WHEREOF this Irrevocable
Proxy has been executed on this ___ day of September, 2008.
| [Name of Stockholder] | ||
|
By:
|
____________________________ | |
|
|
Name: | |
| Title: | ||
NY #1725506 v9
SCHEDULE
I
Stockholders
|
Number of
Shares of
|
Number of
Shares of
|
|||
| Name of Stockholder |
Class A Common
Stock
|
Class B Common
Stock
|
||
| Phoenix FA Holdings LLC |
6,959,288
|
None
|
||
|
|
|
|||
| Xxxxxxx Xxxxxxx |
22,394
|
15,000
|
||
|
|
|
|||
| Xxxx Xxxxxxx |
161,137
|
15,000
|
||
|
|
|
|||
| Xxxxxxxx Xxxxxxx |
19,750
|
15,000
|
||
|
|
|
|||
| Xxxxxxx X. Hercot |
51,837
|
15,000
|
||
|
|
|
|||
| The Xxxxxxx Children's Trust |
80,000
|
None
|
||
|
|
|
|||
| The Xxxxxxx Group LLC |
3,193,688
|
2,533,996
|
||
|
|
|
|||
| Xxxxxxx Xxxxxxx Family Foundation |
2,400
|
None
|
||
|
|
|
|||
| Bayswater Ventures, LP |
442,754
|
None
|
||
|
|
|
|||
Schedule
I - 1
Address for
Notices
Phoenix
Stockholder
Phoenix
FA Holdings LLC
000 Xxxx
00xx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxx
Xxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
Phoenix
Representative
Xxxxxx
Xxxxxxxx and Xxxxxx Xxxxx
c/o
Phoenix FA Holdings LLC
000 Xxxx
00xx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Xxxxxxx
Stockholder
For each
of Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxx Xxxxxxx and Xxxxxxx Hercot,
to:
[Name of
Applicable Stockholder]
c/o The
Xxxxxxxxx Corporation
0000
Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx,
Xxxxxxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
For The
Xxxxxxx Children’s Trust, to:
The
Xxxxxxx Children’s Trust
c/o The
Xxxxxxxxx Corporation
0000
Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx,
Xxxxxxxx 00000
Attn: Xxxx
X. Xxxxxxx, Trustee
Tel: (000)
000-0000
Fax: (000)
000-0000
Schedule
I - 2
For The
Xxxxxxx Group LLC, to:
The
Xxxxxxx Group LLC
c/o The
Xxxxxxxxx Corporation
0000
Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx,
Xxxxxxxx 00000
Attn:
Xxxx X. Xxxxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
With a
copy to:
The
Xxxxxxx Group LLC
c/o
Withers Xxxxxxx LLP
000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxxx, Xxxxxxxxxxx 00000
Attn: Von
X. Xxxxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
For The
Xxxxxxx Xxxxxxx Family Foundation, to:
The
Xxxxxxx Xxxxxxx Family Foundation
c/o The
Xxxxxxxxx Corporation
0000
Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx,
Xxxxxxxx 00000
Attn: Xxxxxxx
X. Xxxxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
With a
copy to:
(by
mail)
The
Xxxxxxx Xxxxxxx Family Foundation
x/x Xxx
Xxxxxxx
X.X. Xxx
0000
Xxxxxxxx,
Xxxxxxxxxxx 00000
Fax: (000)
000-0000
(by
courier)
The
Xxxxxxx Xxxxxxx Family Foundation
c/o Xxx
Xxxxxxx
0 Xxxxxxx
Xxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Schedule
I - 3
For
Bayswater Ventures, LP, to:
Bayswater
Ventures, LP
c/o The
Xxxxxxxxx Corporation
0000
Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx,
Xxxxxxxx 00000
Attn: Xxxx
X. Xxxxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
With a
copy to:
Bayswater
Ventures, LP
c/o
Withers Xxxxxxx LLP
000 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxxxx
Xxx-Xxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
Xxxxxxx
Representative
Xxxx X.
Xxxxxxx and Xxxxxxxx Xxxxxxx
c/o The
Xxxxxxxxx Corporation
0000
Xxxxxx Xxxxxxxxx, Xxxxx 0000
XxXxxx,
Xxxxxxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
Schedule
I - 4
